February 28, 2013 at 2:40 pm EST | by WBadmin
Business: Family Medical Leave for gay couples?
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Although two decades have passed since its enactment, the Family and Medical Leave Act (“FMLA”) continues to evolve through court decisions. The FMLA allows an eligible employee of a covered employer up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons. In December 2012, the U.S. Supreme Court announced that it would consider whether the Defense of Marriage Act unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions. A Supreme Court decision nullifying DOMA could have wide-ranging impacts, including how the FMLA covers “caring for a spouse.”

The FMLA allows an eligible employee up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition. As a preliminary matter, the FMLA regulations provide that the term “spouse” is defined in terms of the applicable state law:

Spouse means a husband or wife as defined and recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.

This FMLA provision, however, has been limited by DOMA’s definition of “spouse” to mean only opposite-sex spouses. DOMA, clearly states that the word “marriage” means only a legal union between husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Recently, a federal court in Michigan rejected an employee’s claim involving the FMLA’s provision for “caring for a spouse.” In the case of Copeland v. Mid-Michigan Regional Med. Ctr., (E.D. Mich. Feb. 16, 2012), the plaintiff employee asserted a claim for violation of the FMLA by her employer for failing to provide leave, demoting her, and putting her on probation as a result of her absences to care for her terminally ill same-sex partner which ultimately resulted in her termination. The U.S. District Court for the Eastern District of Michigan found that plaintiff’s FMLA claim failed, as a matter of law, because the FMLA only provides leave for an employee to care for a “spouse,” which is defined in the regulations, as a husband or wife defined or recognized under state law for the purposes of marriage in the state where the employee resides.

The court rejected Copeland’s claim under the FMLA because in Michigan, same-sex marriages are not constitutionally recognized and common law marriages were abolished. The couple, thus, was not husband and wife as defined and recognized by state law, and the employee was not the sick partner’s “spouse” for purposes of the FMLA. The court also ruled against the employee with respect to her claim that the employer violated its internal FMLA policy because the employee handbook defines “family member” to include a domestic partner. The Copeland Court held that “[a]ny possible cause of action relating to violation of internal FMLA policy by virtue of defendant employer’s handbook definition of “family member” does not provide a basis for a statutory claim under the FMLA.

While the Copeland case was decided under Michigan law, given the current law in D.C. and the recent legalization of same-sex marriage in Maryland, the results may be different. On the other hand, Virginia, like Michigan, does not recognize same-sex marriage and as such, any result in Virginia would likely be the same. Employers as well as members of the LGBT community are anxiously awaiting further guidance from the Supreme Court in June 2013 regarding this issue. If the Supreme Court rules that DOMA violates the rights of same-sex couples who are legally married under the state laws where they reside, then an employee arguably—at least in states, such as D.C. and Maryland, where same-sex marriage is legal—may be entitled to request FMLA leave to care for a same-sex spouse. If the court rules that the state law references in the FMLA were modified by the subsequent DOMA statute, then same-sex spouses may not enjoy the same FMLA benefits as opposite-sex couples.

(The contents of this article are intended for general informational purposes only and should not be considered legal advice.)

This is a part of a series of monthly articles by Jackson & Campbell, P.C. on legal issues of interest to the LGBT community. Jackson & Campbell, P.C. is a full-service law firm based in Washington with offices in Maryland and Virginia. Those with questions regarding this article, please contact Michele Dearing at 202-457-1629 or mdearing@jackscamp.com. Those with questions regarding the firm should contact Don Uttrich, who chairs its Diversity Committee, at 202-457-4266 or duttrich@jackscamp.com.

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