Under new ruling same-sex couples may qualify for FMLA

The Family Medical Leave Act is a federal law which allows some California employees to take up to 12 weeks of unpaid leave from their job without losing their health insurance or their job. It only applies when the person needs to take leave to care for themselves or an immediate family member. Immediate family members include a parent, child or spouse. Furthermore, the employee must work for a company with at least 50 employees and must have worked at least 25 hours a week for that company for the last year in order for FMLA to apply to the employee.

Prior to the United States Supreme Court’s recent ruling, the federal Defense of Marriage Act prohibited the federal government from offering federal benefits — including those under the FMLA — to married same-sex couples, even those in states that recognized their marriages. Recently, the Supreme Court struck down part of DOMA and has required the federal government to recognize same-sex couples who are legally married.

Therefore, those same-sex couples who are legally married, and living in a state that recognizes the marriage — including California — now qualify for FMLA protection. Therefore, if a spouse in a same-sex marriage will be able to take the time off of work to care for an ill spouse — as long as the employee otherwise meets the FMLA requirements.

This is very welcomed news for many California employees who will now be able to take advantage of this very important employee law. However, since it is a new, and very different, change, there may be some employers who refuse to recognize it or do not properly implement the changes. In that case, California same-sex employees should know that they have legal options and may have the right to compensation.

Source: The Huffington Post, “DOMA Ruling Expands FMLA Protections,” Ellen Bravo, July 18, 2013

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