The Family and Medical Leave Act (FMLA) is a federal statute that allows eligible employees to take a leave of absence from work without losing their health insurance coverage in certain circumstances, which includes providing care to a spouse with a serious health condition. The definition of “spouse” has evolved in the United States to include “same-sex spouses” in some cases. Those changes have affected eligible employees’ rights in states that recognize same-sex marriage, and could affect employee’s rights in Idaho due to a recent lawsuit challenging Idaho’s same-sex marriage ban.
FMLA: AN OVERVIEW
The FMLA entitles eligible employees of covered employers to take an unpaid job-protected leave for specific medical and/or family related reasons for a period of twelve (12) work weeks in every twelve (12) month period. It requires employers to continue group health insurance coverage for that employee under the same terms and conditions as if the employee had not taken leave during that period.
The FMLA applies to the following employers:
The following employees are eligible for coverage:
Eligible employees may take up to 12 weeks of unpaid leave every year for the following reasons:
Until recently, same-sex partners of eligible employees were not considered “spouses” under the FMLA. Accordingly, eligible employees were not covered by the FMLA if they took time away from work to care for a same-sex spouse with serious health conditions or for any qualified exigency arising out of a same-sex spouse’s military duty.
The United States Supreme Court’s ruling recognizing same-sex relationships in a limited capacity in U.S. v. Windsor this year has, however, impacted FMLA coverage in many states. As explained below, Idaho is not currently one of the sates in which employers are required to provide FMLA coverage to employees in same-sex relationships during leave to care for their spouse or partner. However, a recent challenge to Idaho’s same-sex marriage ban could change that.
FOLLOWING U.S. SUPREME COURT DECISION, COUPLES CHALLENGE IDAHO’S SAME-SEX MARRIAGE BAN
On November 8, 2013, four Idaho couples filed a lawsuit in the United States District Court, District of Idaho, challenging Idaho’s same-sex marriage ban. The same-sex marriage ban has been in place since 2006 when Idaho’s constitution was amended to include a provision stating that heterosexual marriage is the only legally recognized form of marriage in Idaho.
The couples challenged the same-sex marriage ban following the Supreme Court’s ruling in Windsor, which the Court issued in June of 2013. In Windsor, the Court held that Section 3 of the Defense of Marriage Act (DOMA), which interprets the terms “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. The Windsor decision only applied to Section 3 of DOMA. It did not address other federal statutes, including the FMLA. However, since the Supreme Court’s ruling in Windsor the Department of Labor’s Wage and Hour Division, which administers the FMLA, has taken action consistent with the Court’s holding.
CHANGES TO THE FMLA FOLLOWING WINDSOR
In July 2013, the Department of Labor revised Fact Sheet #28F entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. The revised Fact Sheet added “same-sex marriage” to the definition of spouse under the FMLA. However, the updated fact sheet also provides that, for FMLA purposes, the state of a couple’s residence controls their marital status. This is because current FMLA regulations that pre-dated Windsor provide that a “spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides…” Accordingly, an employee in a same-sex relationship does not have a right to FMLA coverage to care for his or her spouse or partner if the laws of the state in which she or he resides do not recognize same-sex marriages.
Should the four couples who have challenged the same-sex marriage ban in Idaho be successful, same-sex couples whose employers are covered by the FMLA should become eligible for FMLA leave to care for a same-sex spouse or partner. In either case, to avoid liability, employers should make their policies known to all employees. Further, if the challenge on the same-sex marriage ban in Idaho is successful, employers should consider the following implications.
INSIGHTS FOR EMPLOYERS
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.