What Employees Should Know About the FMLA & Same Sex Labor Rules

Some companies adopted human resource policies over leave and benefits for domestic partners as early as 1982, before the debate over same sex marriage arose, but now that United States vs. Windsor (2013) has allowed that same-sex marriages performed in states where it’s legal are valid for purposes of federal law, this includes the Family Medical Leave Act (FMLA). In February of 2015, the Department of Labor revised the definition of “spouse” to include same-sex spouses. This went into effect at the end of March.

What Does This Mean for Same-Sex Employees?

For employees in a same-sex marriage that was performed in a state that recognizes it as a legal marriage (there are still 11 that don’t), they are eligible for the same family leave benefits that straight employees are. These include being eligible for up to twelve work weeks of (unpaid), job-protected leave during a twelve-month period for the following reasons:

• the birth, or placement (adoption or foster care) in the home, of a child
• caring for the employee’s spouse, child or parent
• recuperation from a serious health condition
• taking care of things for an active service member if that member is a son, daughter, spouse, or parent

During this time the employee’s job must be protected (seniority remaining in effect as if the employee had continued to work during that time) and benefits remain in place. However, employees may be required to pay for the benefits while on leave.

Am I Covered Under FMLA?

While the ruling affects married same-sex employees, there are still people and companies not included under FMLA. Companies that employ less than 50 people are not included in FMLA provisions and you may not receive benefits as such. However, even though they are not required to by law, some companies extend similar benefits to their employees. Talk to your employer to know for sure. All public agencies and educational institutions, regardless of size of their employee base, must adhere to the FMLA.

Even if your company must adhere to the FMLA, some employees are not eligible. To be eligible you must have:

• worked for the employer for at least 12 months (though they do not have to be consecutive)
• worked at least 1,250 hours

If you meet those provisions, and your employer is one that must adhere to the FMLA, you are covered whether you are in a traditional marriage or a same-sex one (assuming it was performed in a state that recognizes it).

If you think your employer is discriminating against you, or telling you that you are ineligible for family medical leave, you need someone who can help. You need an employment attorney who understands discrimination and can ensure you are able to get the leave you are entitled to. Whether you’re welcoming a child into your home or you have to care for a loved one who’s undergoing a difficult time, you don’t need any additional concerns over your benefits and the security of your job. Contact Wenzel Fenton Cabassa, P.A. today for your free case evaluation.