As anyone with a television set, radio, or the internet is already aware, the United States Supreme Court recently declared the Defense of Marriage Act (“DOMA”) to be unconstitutional. This landmark decision has immense implications for the federal benefits which will now be afforded to same-sex, married couples – at least in States which recognize same-sex marriage – but, as employment attorneys, the members of The Spitz Law Firm are greatly interested in the ways in which Federal recognition of same-sex marriage will affect employees’ coverage under the Family Medical Leave Act (“FMLA”).
Pursuant to the FMLA’s provisions, qualifying employees are entitled to take leave from work to care for a family member with a serious health condition. The FMLA defines “family member” to, as one might imagine, include an employee’s spouse. The statutory definition reads: “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”
Previously, even those same-sex couples who were married in states which legalized same-sex marriage did not fall within this definition, as DOMA defined marriage, at a Federal level, as only the joining of one man and one woman. Of course, now, as DOMA has been struck down, the FMLA’s definition of “spouse” will include same-sex, married employees and their spouses who are legally married in States which recognize their marriage. BUT what is unclear is how FMLA provisions will be enforced when a same-sex married couple moves from the State in which they are legally married to a different State which does not recognize same-sex marriage.
This very real problem stems from the fact that the FMLA’s definition of “spouse,” outlined above, restricts covered marital situations to the laws of the State where the employee “resides.” As such, employees who are legally married in States that recognize same-sex marriage will not be covered for purposes of the FMLA if they move to a State where same–sex marriage is not legal. Of course, these potential problems can be resolved through guidance from the Department of Labor, and the employment attorneys at The Spitz Law Firm will continue to follow the developments in what will surely be a quickly developing new area of law.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number for FMLA help is 866-797-6040.
The materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm or any individual attorney.