In June of 2013, the Supreme Court of the United States made a historic decision in United States v. Windsor that invalidated the clause of the Defense of Marriage Act (DOMA) that defined marriage as a legal union between two members of the opposite sex. Though the federal government’s recognition of same-sex marriage was a huge milestone, the administration acknowledged that all of the applicable changes to federal programs and policies would take months, if not years, to implement. Specifically, the Department of Justice (DOJ) has been going through the literal thousands of federal laws that may impact same-sex couples and reporting suggestions on how government agencies, companies, and other entities should adapt in light of the Supreme Court ruling.
On June 20, 2014, Secretary of Labor Thomas Perez announced a rule proposal that will greatly impact federal employment laws. Specifically, the Department of Labor (DOL) will recognize same-sex spouses under all circumstances regarding the Family and Medical Leave Act (FMLA).
Under the FMLA, an employee has the right to take up to 12 weeks off per year in for various medical or family-related reasons. These reasons may include:
· An employee’s illness or serious medical condition
· To take care of a new child after a birth or an adoption
· To take care of a seriously ill close family member
· To take care of a service member who is injured
· To deal with the deployment of a service member
An employer is not allowed to discriminate or retaliate against any employee who takes leave under FMLA for a qualifying reason. Additionally, employers must continue to provide health benefits while an employee is on leave and is required to restore the employee to the same—or substantially similar—position they held prior to taking leave. Though California and each state have their own leave policies the federal FMLA applies to all private and public employers across the United States that employ more than 50 employees.
The New Rule Proposal
The new DOL rule involves employees who wish to take leave to care for an ill family member. Under the law, “family” includes spouses, parents, and children. Previously, spouses in same-sex marriages were not covered by the FMLA. Now, FMLA will cover all same-sex spouses as long as they were validly married in a state in which same-sex marriage is allowed. The employee and spouse do not have to actually live within a state that recognizes gay marriage, as long as the marriage itself is valid. This is surely the first of many changes to federal policies that may affect employees in same-sex marriages due to the repeal of DOMA.