Navigating FMLA Issues After the Fall of The Defense of Marriage Act Navigating FMLA Issues After the Fall of The Defense of Marriage Act NJBIA Employment and Labor Policy Committee Meeting September 11, 2013

How Did DOMA Affect The FMLA Before Windsor? FMLA permits employees to take job protected leave to care for certain family members, including spouses. It defines spouse as “a husband or wife as recognized under state law for purposes of marriage in the state where the employee lives.” But the Defense of Marriage Act’(“DOMA”) defines marriage and spouse for all federal laws: marriage: “legal union between a man and a woman as husband and wife.” spouse in marriage: “a person of the opposite sex who is a husband or wife.” Effect on FMLA according to DOL: DOMA’s definition of spouse controls over conflicting state laws. Employees legally married to a same sex partner under state law were NOT entitled to FMLA leave to care for the partner. 2

US Supreme Court’s U.S v. Windsor Decision Case involved two women legally married in Canada living in NY state. One died and left her spouse a very large estate. The federal government would not recognize the estate tax exemption for the surviving spouse and stuck her with $300K in taxes. The Supreme Court said if the surviving spouse was a man this never would have happened. Court struck down DOMA and said it was unconstitutional. Reasoning: DOMA’s definition of marriage and spouse created many benefits only for couples of the opposite sex and put same sex married couples who marry legally in a state at a disadvantage. While the Court did not cite the effect of this ruling on the FMLA, it has a major impact on this law and many other federal laws. 3

Administering Family Leave After the Fall of DOMA  FMLA’s definition of spouse now governs leave benefits.  Spouse: “a husband or wife as recognized under state law for purposes of marriage in the state where the employee lives.”  An employee who is married to same sex partner and living in state that recognizes same sex marriage is now entitled to FMLA leave to care for the spouse who is suffering from serious health condition, for military caregiver leave, or when same sex spouse is called to active duty in the military. 4

Administering Family Leave After the Fall of DOMA  What matters: whether same sex marriage is legal/recognized in the state where the employee currently lives.  What does not matter: where employer is located; where employee works; where employee was married.  Effect: employers may be required to provide leave for some employees who are married to same sex spouses but not to others. 5

States That Permit Same Sex Couples To Marry And Recognize Same-Sex Marriage CaliforniaMassachusetts Conn.Minnesota DelawareNew Hampshire District of ColumbiaNew York IowaRhode Island MaineVermont MarylandWashington 6

Practical Effects: Leave To Care For Spouses Under FMLA FMLA now requires employers to give leave to an employee to take care of a same-sex spouse if the employee lives in a state that permits same sex partners to marry or recognizes same sex marriages. If you have an employee working for you who was married in a state that recognize same sex marriage but now lives in a state that does not recognize it, no FMLA entitlement. If employee works for you in a state that recognizes same sex marriage, like NY, but lives in a state that does not recognize it, like NJ, no FMLA entitlement. 7

FMLA Same Sex Marriage Analysis Chart State where employee lives State where employee works Can employee married to same sex spouse take leave to care for that spouse under the FMLA? Recognizes same sex marriage Does not recognize same sex marriage YES Recognizes same sex marriage YES Does not recognize same sex marriage NO Does not recognize same sex marriage Recognizes same sex marriage NO 8

Implications For Employees In Same Sex Relationships In NJ New Jersey Family Leave Act still entitles employees to leave to care for sick spouses and civil union partners even though NJ does not recognize same sex marriage. If you operate in other states besides NJ that provide leave for same-sex partners, don’t forget about those laws. 9

Should You Provide Leave Benefits For Same Sex Couples Who Don’t Meet FMLA Test? Implications: 1. Are you treating people differently without a legal basis to do so? 2. Are you creating greater leave entitlement? 10

How To Confirm And Document Same Sex Spousal Relationships FMLA regs permit employers to require employees to confirm family relationship with documentation or statement of family relationship and to determine if leave is covered by FMLA. 29 CFR (j); 29 CFR 302(c). It appears employer can ask to see marriage certificate or other legal document attesting to the marriage and other documents to verify employee lives in a state recognizing same sex marriage. If you are going to do this for same-sex couples, you should do it for all married couples to avoid exposure to sexual orientation lawsuit. 11

Administrative Issues Review and revise policies discussing FMLA benefits to ensure the rights of employees with same sex spouses are covered. Monitor states recognizing same sex marriage. keeps track. Assess impact on any policies or practices you already have with same sex civil union partners. 12

CONTACT INFORMATION Lisa Fried-Grodin, Esq. Partner Meyers Fried-Grodin LLP 520 Speedwell Avenue, Suite 210 Morris Plains, NJ (973)