Posted June 26th, 2014 in Legal Insights

Will FMLA’s Expansion to Cover Same-Sex Couples Leave Employers in a Quandary?

The Obama administration’s recent proposal to extend Family Medical Leave Act (FMLA) benefits to include all same-sex married couples, even those in states that do not currently recognize same-sex marriage brings some welcome guidance to employers who have been unsure of how to proceed following last year’s Supreme Court decision in Windsor. Sarah Riskin and Jen Cornell, labor and employment attorneys at Nilan Johnson Lewis, point out that employers in states that do not recognize same-sex marriage have been in a tough spot, as the FMLA as currently written is incongruent with Windsor. “One company I know of tried to extend FMLA benefits to same-sex spouses even though the state where the employees live doesn’t recognize same-sex marriage, but its insurance company is refusing coverage because the current definition of ‘spouse’ under the FMLA is based on the state of residence,” says Riskin. “While the proposed rule will provide some relief and guidance to employers, it also raises questions about how and whether employers should retroactively designate leave they have previously given as FMLA leave.” Contact Sarah Riskin at sriskin@nilanjohnson.com or (612) 305-7713 or Jen Cornell at jcornell@nilanjohnson.com or (612) 305-7717.