The U.S. Family and Leave Act (FMLA) has been part of the workplace for over 20 years now and you would think that it would be easier for HR to administer. But that is not the case. There are confusing regulations, including recent changes at both the legislative and regulatory levels, conflicting court decisions, the need to coordinate FMLA with state leave laws, and the headache of tracking intermittent leave. And employers must comply with any provisions of state or local law that provide greater family or medical leave rights than the rights established by the federal law.
Supreme Court Further Complicates FMLA
To add to this, on June 26, 2013, the U.S. Supreme court ruled that the federal Defense of Marriage Act (DOMA), which defines marriage as a legal union between one man and one woman, was unconstitutional. The FMLA, and its regulations, define a covered “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.”
As a result of the Supreme Court’s decision, whether an employee may take FMLA leave to care for a same-sex spouse with a serious health condition centers on whether a marriage between the same-sex couple is recognized in the state in which the employee resides.
So What Does This Mean for Managers and Employers?
FMLA administration will be harder, as you will need to keep abreast of states’ laws on same-sex marriage, the state of residence of the requesting employee, and the state or jurisdiction in which the marriage occurred to administer an FMLA-leave request.
As of November 2013, 14 states, the District of Columbia, eight counties in New Mexico and eight Native American tribal jurisdictions—covering 38% of the U.S. population—issue marriage licenses for same-sex couples. Other states have also signed same-sex marriage legislation that will become effective later this year and in 2014.
Interestingly, the Department of Labor recently updated the definition of spouse in Fact Sheet #28F. The new definition of spouse under FMLA is as follows:
A spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.
And to top it off, the U.S. Department of Labor (DOL) anticipates an increase in on-site FMLA investigations. These investigations, announced or unannounced, include access to FMLA records, employee data, payroll, and interviews with employees on-site.
So what should you do?
- Have a process in place on how to handle investigations
- Designate an FMLA manager to view your policies, forms, practices, leave requests and to handle investigations
- Frequently check your polices
- Involve legal counsel as needed
Because of the complexity of FMLA, it is best practice to seek legal counsel for guidance on how to administer your FMLA policies and if you need to expand your definition of family members beyond what is federally required. For example, should you include children of same-sex spouses which are now the step-children of the non-natural parent? The simple approach is to make sure the administrator knows, for all employees, who the spouse is.