FMLA’s New Definition of Spouse Halted in Four States

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United States v. Windsor Marriage Act Called into Question in Some States

Do you live in a state that supports the Defense of Marriage Act? If you applauded the Supreme Court’s decision in United States v. Windsor — the recent hearing and argument over the Defense of Marriage Act (DOMA) — and wondered what that would mean for the definition of “spouse” in topics of employment rights like the Family Medical Leave Act (FMLA), you were probably thrilled to see the Department of Labor alter its definition of spouse to include same-sex partners.

Now that change is being questioned in the courts.

In Texas v. The United States, the states of Texas, Louisiana, Nebraska, and Arkansas requested a preliminary injunction in regards to the Department of Labor’s change. In March of this year, the United States District Court of Northern Texas granted their request.

Are Same Sex Partners Covered Under the Family Medical Leave Act?

When the United States Supreme Court struck down section 3 of the Defense of Marriage Act, which stipulated marriage was between a man and a woman (partner of the opposite sex), President Obama asked that all legislation be reviewed for places in which this new definition of spouse could be applied.

One place was in the FMLA policy. Covered employees may take up to 12-weeks of unpaid leave to care for their spouse (as well as a limited list of other family members such as child, mother, father, etc.) in a 12-month period. The Department of Labor revised their definition of “spouse” to coincide with the Supreme Court’s ruling and broadened the definition to include same sex partners as spouses if their state recognized them as legally married. This did not cover employees who lived in a state that did not recognize it.

In February of this year the Department of Labor revised that stipulation and said FMLA covers all same sex partners regardless of whether the state they live in recognizes it or not. The new definition was to go into effect at the end of March.

A Question of State’s Rights

Since Texas, Arkansas, Nebraska, and Louisiana do not recognize same-sex marriage in their states, they filed an injunction. It was granted because Congress had been quite clear that it intended to allow states to define whether same-sex privileges would be granted or not. The Court concluded that the Department of Labor exceeded its authority by introducing that ruling. While the preliminary injunction remains in effect, the Department of Labor cannot take any action to enforce their change in wording.

Employers Need to Catch Up

Employers outside of those four states need to review their family leave policies and ensure the new definition of spouse is included. Employers must also do their part in educating their staff such as managers, supervisors, and HR departments about this change. For companies who have employees in these four states, it’s essential to monitor the progress of this argument.

If you work for a company in Florida that has not adopted the new language on their FMLA policies and you’ve been denied leave to tend to a same-sex spouse, you should not have to fear for your job. At Wenzel Fenton Cabassa, P.A. we’ll fight for your rights to care for your loved ones regardless of gender. Contact us for a free consultation and evaluation of your employment rights case.

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