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New regulations mandating federal emergency leave for all married same-sex couples may require employers to revise their policies and provide additional training, but it also should provide some administrative relief for benefit managers and human resources professionals.
The U.S. Department of Labor last week issued a long-awaited final rule that expands the definition of spouse under the Family and Medical Leave Act to include all legally wed same-sex couples, effective March 27.
The FMLA guarantees eligible private and public employees up to 12 weeks of unpaid leave per year in cases of serious illness or injury or to care for sick or injured family members, including spouses and their immediate relatives.
Previously, married gay and lesbian couples were guaranteed only emergency unpaid leave under the law if they lived in one of the 36 states that recognize same-sex marriages.
“I think most employers will welcome this as one less thing for them worry about when it comes to administering FMLA leave,” said Jean Schmidt, a shareholder at Littler Mendelson P.C. in New York.
Under the new rule, same-sex couples will be eligible for spousal FMLA leave as long as they were legally married in a state, U.S. territory or foreign country that recognizes such marriages.
Employment law experts say the Labor Department's new rule is likely to be particularly beneficial for national and regional employers whose operations are in states with differing marriage recognition laws, as well as companies with substantial numbers of out-of-state commuters among their workforce.
“Those employers are finally going to be able to apply the same eligibility standard across the country and not have to rifle through various sources of information to figure out which spouses are entitled to leave benefits and which aren't,” said Jeffrey Nowak, partner with Franczek Radelet P.C. in Chicago.
Mr. Nowak said some employers may see a slight increase in the volume of FMLA leave requests once the rule is implemented, “but for the average employer, that's probably not going to be a significant burden.”
Experts say that while the rule reduces the complexity associated with administering leave benefits under the FMLA, there are steps many employers will need to undertake to ensure compliance with the federal rule on and after March 2.
“The first thing employers ought to do is conduct an audit of their internal policies and any other kind of documentation that they're using for the administration of leave benefits,” said Laura Maechtlen, San Francisco-based partner at Seyfarth Shaw L.L.P.
“That can be a little bit trickier for some employers than for others, especially if they're using a third-party administrator to manage those benefits. That said, some employers have specific definitions or statements about spouses and eligibility in their employee handbooks or FMLA polices, and those need to be looked at carefully,” she said.
Employers also should provide additional training for their benefit managers, human resources professionals and — in many cases — operational supervisors on the rule and its implications for their company's leave management strategy going forward, even if they already provided FMLA leave to all married same-sex couples.
“This is a great opportunity for retraining, because it's an issue that a remarkable number of even sophisticated HR departments get wrong,” said Ricki Roer, partner with Wilson Elser Moskowitz Edelman & Dicker L.L.P. in New York. “Anytime there's a chance to retrain or fine tune implementation of FMLA leave benefits, I strongly recommend that employers take it.”
Prior to the Labor Department's new definition of a spouse, the FMLA was one of the last federal employment laws under which married same-sex couples in certain states could not access the same benefits as opposite-sex spouses. Most other federally mandated marriage rights and benefits were extended to all legally married same-sex couples in late 2013 and 2014, after the U.S. Supreme Court's partial overturn of the 1996 Defense of Marriage Act.
“It just so happened that the language of the FMLA when it passed in 1993 defined the word spouse according to the state in which the employee resides, and that made the FMLA a bit of an anomaly because a lot of other federal laws didn't define it at all,” Ms. Schmidt said. “It's unclear why it was written that way in the first place, but those of us who have been following the expansion of rights and protections for same-sex couples have been expecting this.”