New U.S. Supreme Court Cases on Same-Sex Marriage Expand Leave Rights for Same-Sex Spouses

On June 24, 2013, the United States Supreme Court issued two rulings that were met with a roar of approval from equal rights advocates from coast to coast. Just days before the annual LGBT pride celebrations got underway nationwide, the Supreme Court struck down the Defense of Marriage Act (“DOMA”), and issued another decision which resulted in same-sex marriages resuming in the state of California.

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act (“FMLA”).

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term “spouse” as only a person of the opposite sex who is a husband or wife, and defined “marriage” as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term “spouse,” and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.

In California, even before the Supreme Court’s recent decisions, the California Family Rights Act (a state law substantially similar to the FMLA) gave covered employees the right to take leave to care for a registered domestic partner or same-sex spouse. While same-sex spouses in California have rights under CFRA, the problem for many same-sex couples in recent years has been the moratorium on same-sex marriages. Although some 18,000 same-sex couples got married in 2008 during the brief period when California was conducting same-sex marriages, for the past four and a half years, no same-sex couples have been legally married in California. This means that same-sex couples who were not legally married or were not registered domestic partners were not covered by the CFRA leave protections. The good news under the CFRA then, is not that the definition of “spouse” has changed but that fact that same-sex couples can now become spouses if they so choose. Once married, a same-sex couple is entitled to the same protections as an opposite-sex couple under CFRA.

In addition to providing leave to covered employees, both the FMLA and CFRA have anti-retaliation provisions which prohibit an employer from punishing employees for exercising their rights under either of these two laws. Same-sex spouses who are denied or discouraged from taking leave under the FMLA or CFRA will now have recourse against their employers and have stronger protections in the workplace. This makes the laws against sexual orientation discrimination stronger than they were before.

July 19, 2013 Siegel, LeWitter & Malkani