Same-sex couples may not qualify for FMLA protections

Many people in California understand that same-sex couples are just like their heterosexual counterparts. They face illness, death, birth and other major life events just like everyone else. And, just like heterosexual people, when these large events happen, same-sex couples often need to take off time from work.

For a heterosexual couple, the Family Medical Leave Act, a federal employment law, would help provide job security following a major life event such as the birth of a child or a husband or wife’s serious illness. Under FMLA, qualified employees are entitled to up to 12 weeks of unpaid leave under certain circumstances. These circumstances include the birth or adoption of a child or a qualified illness of a spouse, child or parent among others.

However, some Californians may be surprised to learn that FMLA job protection does not necessarily apply for same-sex couples. Under federal laws — the Defense of Marriage Act in particular — same-sex unions are not recognized. Therefore, if an employee’s same-sex partner gets seriously ill or has a baby, that person would not be considered a spouse under FMLA. Since the person is not a spouse, FMLA would not apply and the person would not be entitled to protected leave from work — even if they would otherwise qualify for FMLA.

This situation can obviously cause stress for same-sex couples. These couples should know that California state law may provide remedies. By using supplemental insurance programs, couples may be able to take some of the financial stress off during a family crisis. However, until federal laws change, same-sex couples will need to be careful not to assume that their jobs would be safe if they needed to take qualified medical leave.

Source: The Huffington Post, “Supporting LGBT Workers and Their Families in Times of Need,” Jared Make, May 15, 2013

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