I like when I get the opportunity to
refresh everyone’s memory on regulatory issues while reporting a change in
policy. So in order for you to get to
the “good stuff” you have to tolerate my FMLA lesson of the day. Remember that FMLA can be invoked for a
number of reasons:
A covered employer must grant an eligible employee up to a total
of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or
more of the following reasons:
·
for the birth of a son or daughter, and to bond with the newborn
child;
·
for the placement with the employee of a child for adoption or
foster care, and to bond with that child;
·
to care for an immediate family member (spouse, child, or parent – but not a parent “in-law”) with a
serious health condition;
·
to take medical leave when the
employee is unable to work because of a serious health condition; or
·
for qualifying exigencies arising out of the
fact that the employee’s spouse, son, daughter, or parent is on covered active
duty or call to covered active duty status as a member of the National Guard,
Reserves, or Regular Armed Forces.
Refer back to the third bullet point above. You may have heard the recent news. In
a June decision, the U.S. Supreme Court struck down a provision of the federal
Defense of Marriage Act that defined marriage as between a man and a woman for
purposes of federal law. United States v. Windsor, 133 S.Ct. 2675 (2013) Whether or not this affects your company
depends largely but not completed on what state you are located in and under
what state laws you are operating. There
are various designations between the states when it comes to same-sex
marriage. Some allow marriage, some
allow unions permitting privileges same as marriage, while some outright ban
same-sex marriage. Massachusetts was
the first state to legalize same-sex marriage in 2004. Among those who consider it legal: Delaware, Maryland and the District of
Columbia. But even if you are operating
in a state where same-sex marriage is banned you may still be effected.
It has
recently been reported that the Department of Labor has released an internal
memorandum guiding employees on the effects of this decision. That I cannot verify. However, I do know that the DOL recently
changed it’s definition of spouse. It
now reads:
Spouse: Spouse means a husband or wife as defined or
recognized under state law for purposes of marriage in the state where the
employee resides, including “common law” marriage and same-sex marriage.
Because of this, there are plenty of changes going on as I write. This expanded definition calls for revisions
to federal entitlements of many people.
In order to ascertain the ramifications of this on your organization
consider for a moment the impact of this decision on governmental agencies
whose benefit decisions are based on marital status, more often than not. The Windsor
case itself was based upon the IRS’ assessment of estate tax for a surviving
spouse who was part of a couple residing in a state where same-sex marriage was
legal. For an example, leaving your
estate to your spouse in PA results in inheritance tax of 0% versus leaving it
to an unrelated party which results in a tax of 15%. The impact on government sponsored benefits
will be astounding.
But since I have no crystal ball, let’s get back to
FMLA. Until more direction is provided
by the DOL, employers should be cautious not to deny FMLA leave to a same-sex
couple where their state of residence is a state where same-sex marriage is
legal. Review any forms or policies
you have put in place to make sure they allow for this expanded definition of
spouse and pay attention to any supplemental guidance offered by the DOL in the
months to come.
