FMLA Protections Extended to Married Same-Sex Couples

The Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act (DOMA) had major implications when it comes to eligibility for employee benefits and protections under federal law.

The Family Medical Leave Act (FMLA) allows eligible employees to take 12 weeks of unpaid leave per year to deal with a serious health condition, childbirth/adoption, or the serious health condition of certain family members. Family members included the employee’s children, parents of the covered employee, individuals who acted in loco parentis for the covered employee when the employee was a child (i.e. if you were raised by your aunt then you may be eligible to take FMLA leave to care for her if she develops a serious health condition), and the employee’s spouse.

Previously, because of DOMA, the federal government did not recognize same-sex marriages performed by states that permitted gay marriage. This meant that married same-sex couples did not qualify for a host of federal benefits and protections that opposite-sex married couples received from filing a joint federal income tax return to receiving coverage under a partner’s VA benefits.

Before Windsor same-sex partners were not eligible to take FMLA leave to care for a sick spouse because the federal government did not recognise a same-sex partner as a spouse. Now it appears that the federal government is recognizing same-sex marriages performed in states where same-sex marriage is legal and extending FMLA protections to any and all legally married couples.

If you work in a state that recognizes same-sex marriage and you have been officially married according to the laws of that state, then you are now potentially eligible to take FMLA leave to care for a spouse with a serious health condition.

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