Currently the Family and Medical Leave Act only applies to same sex couples
in states that recognize same sex marriage. However, last Friday The U.S.
Department of Labor
rule to extend the Family and Medical Leave Act's protections to all married
same-sex couples regardless of whether the state they live in recognizes
Why the change? We can thank the U.S. Supreme Court Decision in United
States v. Windsor, which invalidated the section of the Defense of Marriage
Act that had barred the federal government from recognizing same-sex marriages.
Now that the feds are able to recognize such marriages, they can promulgate
rules consistent with that decision.
"The basic promise of the FMLA is that no one should have to choose
between succeeding at work and being a loving family caregiver,"
said Secretary of Labor Tom Perez. "Under the proposed revisions,
the FMLA will be applied to all families equally, enabling individuals
in same-sex marriages to fully exercise their rights and fulfill their
responsibilities to their families."
The DOL is looking to move from a "state of residence" rule to
a "state of celebration" rule and revise the FMLA regulation
defining the term "spouse." Thus if the marriage was legal in
the state where it was entered into, then the FMLA will cover them regardless
of the state in which they reside. (Thus same sex marriages celebrated
in one of sixteen countries where it is legal would also be recognized
as being covered by the FMLA).
The Department believes that a place of celebration rule will give fullest
effect to the purpose of the FMLA to permit employees to take unpaid leave
to care for a seriously ill spouse. The need to provide care for a spouse
is the same for all married couples and does not change depending on their
state of residence. Additionally, a place of celebration rule will provide
consistent federal family leave rights for legally married couples regardless
of the state in which they reside, thus reducing barriers to the mobility
of employees in same sex marriages in the labor market. The Department
believes such a rule will also reduce the administrative burden on employers
that operate in more than one State, or that have employees who move between
States with different marriage recognition rules; such employers would
not have to consider the employee's state of residence and the laws
of that State in determining the employee's eligibility for FMLA leave.
The new rule has gotten approval from the
Office of Management and Budget but has yet to be published in the Federal Register, according to the DOL.
The state of New York does recognize same sex marriages, so the FMLA already
covers employees here. Also, employees who work in New York City are covered
by the New York Paid Sick Leave Law, which is broader than the federal
law. Employees who work more than 80 hours a calendar year in New York
City are covered by the paid sick leave law and accrue one hour of sick
leave for every 30 hours worked, up to 40 hours in a calendar year. If
their employer has five or more employees, they have the right to paid
sick leave, and if the employer has fewer than five employees, they have
the right to unpaid sick leave. The law covers full-time and part-time
employees, transitional jobs program employees, undocumented employees,
employees who are family members but not owners, and employees who live
outside of New York City but work in the city. Covered domestic workers
have the right to two days of paid sick leave after one year on the job,
which is in addition to the three days of paid rest under New York State
Employees can use sick leave to care for themselves or a family member.
Family members include child, grandchild, spouse, domestic partner, parent,
grandparent, child or parent of a spouse or domestic partner, or sibling
(including half, adopted, or step sibling).