On February 25, 2015, the definition of spouse under the Family Medical Leave Act (FMLA) was expanded to include legally married same-sex spouses, regardless of the state in which they live or work.
If the same-sex spouses are married in a state that legally authorizes same-sex marriage, that FMLA protection will follow them to any state in which they subsequently live or work, regardless of whether that state recognizes same-sex marriage.
Example: John and Dan are married in California, a state that recognizes same-sex marriage. They then move to North Dakota, a state that bans same-sex marriage and find full-time jobs in large companies. John becomes critically ill two years later. Under the revised FMLA rules, Dan is recognized as Johns spouse and is eligible to take up to 12 weeks of job-protected leave to care for John.
Not every employee or company is eligible for FMLA.
These recent changes provide the opportunity to refresh your knowledge of FMLA and determine whether it applies to your company. As a refresher, FMLA allows job protection for an employee to take eligible unpaid medical leave to care for him or herself or a family member experiencing a serious health condition for up to 12 weeks, or up to 26 weeks when caring for a military service member.
To be eligible, certain conditions must be met, including all of the following:
- The company must employ at least 50 people within a 75-mile radius.
- The employee must have worked for the company at least 12 months. The 12 months do not have to be consecutive.
- Within those 12 months, at least 1250 hours must have been worked.
- The employee must use the leave to care for a spouse, child, or parent who has a serious health condition or is unable to work because of his or her own serious health condition.
The FMLA conversation should be a collaborative one. Employees are responsible for communicating with their supervisors about the need for leave and completing the proper paperwork. Employees and supervisors can work together to determine whether the employee is indeed eligible for leave. Nextep’s HR team serves as a valuable resource for those case-by-case requests and helps our clients decide the right course of action.
In 2010 the DOL more clearly defined the term parent for FMLA purposes. Recognizing the many forms of non-traditional parenting, a child’s parent can include anyone who takes day-to-day responsibility for the child, regardless of whether a biological or even legal relationship exists. This expansion of the term spouse further clarifies the caretaking relationships when determining whether an employee is eligible for time off under FMLA.
Since many small companies are not eligible for FMLA, Nextep’s HR Department assists our Non-FMLA clients in crafting a customized medical leave policy.
For help in applying this interpretation to your workplace, reviewing your company’s medical leave policy, or other human resource guidance, please contact Nextep’s HR Department.
