Same-sex couples now eligible for family, medical leave

A U.S. Labor Department spokesperson has told the Washington Blade that they are preparing guidance for employers throughout the U.S. that married same-sex couples are now eligible for family and medical leave under the law since the U.S. Supreme Court’s decision striking down part of the Defense of Marriage Act.

“The Wage & Hour Division is working closely with the Department of Justice and looking through all the materials that touch on this issue to determine what public guidance is necessary,” the spokesperson told the Blade. “We expect to have additional information available in the near future.”

Utah couples who are legally married in another state will be eligible for FMLA.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

  • Twelve workweeks of leave in a 12-month period for:
    • the birth of a child and to care for the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
    • to care for the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Prior to the Supreme Court’s ruling, the Labor Department ruled same-sex couples did not qualify for the FMLA because DOMA prohibited federal recognition of same-sex marriage.

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  1. If the guidance follows the policy issued by Homeland Security, the answer is that the marriage needs to be recognized as legal in the jurisdiction in which it was performed.

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