By Madeline Granato
In the midst of what seems like a summer of political turmoil and regression, early last month the Obama administration proposed a progressive, LGBT-inclusive change to FMLA’s definition of “spouse.”
The current definition of “spouse” under FMLA – the federal law that provides eligible workers with unpaid leave to care for a seriously ill family member – states that an LGBT worker can only take leave to care for a seriously ill same-sex spouse if the couple lives in a state that legally recognizes same-sex marriage. Since the majority of states still refuse to acknowledge same-sex marriage, this approach falls short and does not meet the needs of many LGBT employees. Under the newly proposed definition of “spouse,” legally married same-sex couples living in all 50 states will finally be eligible to take FMLA leave to care for each other.
June 2013 marked an important step for the rights of LGBT workers as the Supreme Court struck down section 3 of the Defense of Marriage Act, which prevented all LGBT employees from taking FMLA leave to care for a seriously ill same-sex spouse or partner. However, the FMLA definition of “spouse” continues to exclude a large number of same-sex couples. Under existing regulations, FMLA defines “spouse” according to the laws of the state in which a worker lives. Therefore, only LGBT workers who reside in states that recognize same-sex marriage are able to take FMLA leave to care for a seriously ill same-sex spouse. Here is an example to put some perspective on the injustices of FMLA’s current definition of spouse:
Steve and John are a recently married, same-sex couple who live in Connecticut. If Steve is diagnosed with cancer, John is eligible to take up to 12 weeks of unpaid leave under FMLA, because the state they live in – Connecticut – recognizes their marriage. If John’s job relocates the couple to Texas, which does not currently recognize their marriage, Steve and John would no longer be considered spouses under FMLA. This means John would not be eligible under FMLA to take leave to take care of Steve.
The Obama administration’s proposal will help Steve and John’s situation by enacting a “place of celebration” rule, where same-sex couples will be recognized if they were lawfully married in any state. Since Steve and John were married in Connecticut, under the “place of celebration” rule, their eligibility for FMLA will not change if they move to a state like Texas that does not recognize their marriage. The proposed rule will also help employers, who will not have the trouble of tracking an employee’s state of residence when determining FMLA eligibility.
Since Connecticut is a state that recognizes same-sex marriage, it may seem like a change in the definition of “spouse” under FMLA would not affect many Connecticut workers. However, under existing FMLA standards, marriages that occur in Connecticut may be impacted if the legally-married couple relocates to another state. By ensuring that more workers are covered by FMLA, the proposed “place of celebration” rule will therefore help workers in the growing struggle to accommodate work and family responsibilities.
On behalf of the Connecticut Campaign for Paid Family Leave, I recently submitted a comment to the U.S. Department of Labor supporting the “place of celebration rule,” which I think will really help eliminate at least one of the many barriers that prevent so many workers across the country from being eligible for FMLA. Though the proposed “place of celebration” rule will currently only apply to just one federal law, it suggests a serious movement in the right direction toward equality for LGBT workers throughout the U.S by increasing the likelihood of being eligible to use FMLA.
Aside from taking a progressive step in advocating for the rights of same-sex couples across the country, the proposal is also an action towards addressing the persistent struggle so many families face when being forced to choose between work responsibilities and aiding an ill family member. When an employee is forced to take some sort of leave to care for a loved one, questionable coverage or eligibility for FMLA should not be an added issue to an already stressful time. Proposal of a “place of celebration” rule exemplifies the first steps in improving FMLA, which will hopefully lead to greater strides toward enacting a state wide, paid family leave system in Connecticut and eventually the entire country.
Madeline Granato is a policy intern at the Connecticut Women’s Education and Legal Fund, entering her first year as a Master’s in Social Work student at the University of Connecticut.