Because California recognizes gay marriage, the protections of the Family and Medical Leave Act apply to same sex partners. This is not currently the rule throughout the United States, but it may become official policy soon if a new proposed definition goes into effect.
The change to the FMLA policy would come after United States v. Windsor, in which the United States Supreme Court struck down the provisions of the Defense of Marriage Act, which denies federal benefits to same-sex couples who are legally married. It is part of a broader trend to ensure that gay and lesbian couples enjoy the same rights as straight couples when it comes to job benefits.
If you work in California, you need to be aware of the rights that the Family and Medical Leave Act provides to you. You should be eligible to take family leave if you have a qualifying covered event involving a same-sex spouse, a domestic partner, or a child of a domestic partner. If your employer fails to provide FMLA leave as required by law, you should contact an Orange County employment law attorney for help as soon as possible.
FMLA Coverage for Same Sex Couples Now Extended
Under current FMLA regulations, married same-sex couples may be considered spouses for determining eligibility for FMLA benefits only in state where same sex marriages are legal. A new proposed rule would revise the FMLA’s definition of spouse so that employees in legal same-sex marriages could take leave to take care of a spouse or a family member even if they live in a state that did not recognize their marriage.
Labor Secretary Thomas Perez spoke out in support of the proposed change to FMLA rules, indicating that “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver.” Same sex couples should be able to have the same ability to fulfill their family responsibilities as straight couples regardless of the state where they live.
The test for FMLA coverage would change to a place-of celebration rule, which considers where the marriage was entered. As a result, if a couple were to marry in California or another state that permits their marriage and then return home to a state that does not recognize same sex unions, they would still receive FMLA benefits.
Your Rights under FMLA Leave
Because California recognizes same-sex marriages, the new FMLA definition of marriage will not directly impact residents who live and work in the state. However, Californians still need to be aware of the protections that FMLA provides to them. If you are marriage or in a domestic partnership in California and you work for a covered employer, you may take time off:
- For the birth of a child or for the adoption and foster placement of a child. This includes children born to a domestic partner or same-sex spouse.
- For a serious health condition.
- To care for a family member, including a same sex spouse or domestic partner, who has a serious health condition. This also includes children of domestic partners.
If your employer does not follow FMLA rules to allow leave, you should speak with an attorney.
Employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 714-937-2020.
More Blog Entries:
California’s Top Employment Law Mistakes, Oct. 26, 2013, Orange County Employment Lawyer Blog