On February 25, 2015, the U.S. Department of Labor announced that it would change its definition of “spouse” under the Family and Medical Leave Act (FMLA) to include employees in legal same-sex marriages. According to the new rule, which will formally take effect on March 27, 2015, an employee with a seriously ill same-sex spouse will now be able to take leave under the FMLA.
Previously, the FMLA only applied to employees with same-sex spouses who lived in states that recognized same-sex marriage. The change will extend the FMLA’s coverage to individuals who got married in states where same-sex marriage is recognized, but currently live in states where it is not. It will use a “place of celebration” rule that defines marriage according to where a couple married, rather than according to where they currently live. An employee in a same-sex marriage can now take up to 12 weeks of FMLA leave in order to:
- Care for a spouse who is seriously ill
- Care for a stepchild who is their spouse’s child
- Address any issues that may arise due to their spouse’s military service.
- Care for their spouse who has been injured on military duty (up to 26 weeks leave)
- Give birth or bond with their newborn child.
The decision to expand the FMLA came in part because of the Supreme Court’s 2013 decision in United States v. Windsor
. In that case, the Court struck down a portion of the Defense of Marriage Act (DOMA) that stated that the word “spouse” was limited to opposite-sex couples. Prior to the Court’s decision, the FMLA only applied to employees in opposite-sex marriages.
Now, FMLA rights apply consistently to all employers that are covered under the Act:
What you should do if your FMLA rights are violated
- Private sector employers with 50 or more employees that work 20 or more workweeks in a calendar year
- Public agencies such as local, state, or federal government agencies with any number of employees
- Public or private elementary or secondary schools with any number of employees
In 2012, over 20% of eligible employees exercised their right to take a leave for family or medical reasons under the FMLA. A leave can be crucial for individuals whose family members are seriously ill. Unfortunately, employers do not always honor their workers’ FMLA rights. They may threaten to take tangible employment actions, such as a firing or a demotion, against individuals who request a leave. If you are an eligible employee, and your employer has refused to allow you to exercise your FMLA rights, you should contact a lawyer as soon as possible. A lawsuit may allow you to recover lost wages and benefits, and to be reinstated to your former position. The lawyers at Akin Law Group are ready to use their legal knowledge and courtroom experience to protect your legally protected rights to care for a seriously ill family member. Contact us at 866.685.5163 to schedule a free consultation.