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Top FMLA Lawyer Reply: Do Same-Sex Spouses Get Protection Under The Family Medical Leave Act?

On Behalf of | Sep 12, 2014 | Employment Discrimination, Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Attorney Answer: What protections are afforded under the FMLA? What requirements must be met in order to gain protection under the FMLA? How does the FMLA protect spouses in a same-sex marriage? What changes to the FMLA may be forthcoming?

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The Family Medical Leave Act (“FMLA”), enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse or a child who has a serious health condition. There are basis requirements under the FMLA in terms of eligibility such as being employed for at least one year with an employer, having worked 1250 hours during that year, and working for an employer who has at least 50 employees within a 75 mile radius.

When you or a loved one experiences a serious health condition that requires you to take time off from work, the FMLA is there to reduce your stress from also having to worry about keeping your job safe. But what about married members of our Gay and Lesbian community that have entered into same sex marriages? Clearly, they face the same stress of keeping their job if their spouse is facing a serious health condition. Currently, under the FMLA, the definition of “spouse” is limited to include same-sex spouses only in states where same-sex marriage is legally recognized. However, a problem arises when same sex spouses move from a state that allows same sex marriages to a state that does not. In this situation, same sex spouses lose their federal rights under the FMLA. If in one of these states that does not recognize same sex marriages, such as Ohio, two married FMLA eligible male workers take a leave of absence because his spouse just had a heart attack or stroke, and the company fired them both; only the heterosexual married man would have a claim for wrongful termination. The homosexual male worker would have no claim under the FMLA. This does not seem fair or right to me.

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Thankfully, there are actually people in the government that feel the same way and are trying to change this inconsistency. In June 2014, the Department of Labor (“DOL”) issued a press release regarding U.S. Secretary of Labor Thomas E. Perez’s announcement of a proposed rule that would extend protection under the FMLA to all eligible employees in legal same-sex marriages regardless of their residence. The proposed rule comes on the heels of the United States Supreme Court’s ruling in United States v. Windsor whereby the Court struck down various provisions of the Defense of Marriage Act including a provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriages under Federal law.

The proposed rule change under the FMLA would change the Act’s definition of “spouse” to incorporate legal same-sex marriages. The instant effect of this change would be to unify the law under Federal law instead of a state-by-state determination wherein currently some states allow similar protections to legal same-sex marriages while others do not. If the proposed rule is implemented, eligibility for FMLA protections would be based “on the law of the place where the marriage was entered into” thus allowing all legally married couples, to have FMLA protection regardless of whether the state in which they reside recognizes those marriages or not.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave 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 Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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