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Labor Department extends FMLA to same-sex spouses

The U.S. Department of Labor made an announcement that will favorably impact same-sex married couples in California. Under the Family and Medical Leave Act (FMLA), these couples can now take a protected leave of absence to care for an ill spouse. This follows the June decision by the U.S. Supreme Court that struck down the Defense of Marriage Act (DOMA), which had denied federal benefits to legally married same-sex couples.

The FMLA, which was passed in 1993, lets eligible employees take up to 12 weeks of unpaid, job-protected leave for specific family and medical reasons within a 12-month period. The employee and his or her family can continue under their company-sponsored insurance plan during that leave. In 2010, the Labor Department extended the provision in the FMLA that lets parents take a leave to care for a child to same-sex parents. They are not required to have a legal or biological relationship with the child.

Labor Secretary Tom Perez says this “regulatory guidance” is the first of many changes his department will implement in the coming months as the result of the overturn of DOMA. He said that he has instructed his department heads to look for ways in which they can provide increased protection to employees and their families as the result of that decision.

The announcement did not specifically state whether the new policy will apply to couples in states where same-sex marriage is not legal, or only to those 13 (plus Washington, D.C.) where it is. However, the U.S. Office of Personnel Management, which manages the nation’s federal civil service employees, announced that it was extending certain benefits to same-sex federal employees and retirees in every state.

In the coming months, with both the end of DOMA and the repeal of Proposition 8, which makes same-sex marriage once again legal in California, businesses throughout the state that did not already extend equal benefits to same-sex couples will be revising their personnel policies. California employers should consult with attorneys who specialize in employment law to ensure that they are in full compliance with the law.

The Wall Street Journal, “U.S. Extends Family Leave to Same-Sex Spouses” Melanie Trottman and Kris Maher, Aug. 09, 2013

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