Family medical leave likely for Michigan’s LGBT employees
Marriages that took place in one-day window probably will be recognized in terms of benefits.
President Barack Obama has directed the U.S. Labor Department to extend the Family and Medical Leave Act to include legally married same-sex couples, regardless of what state they reside in.
The FMLA allows a person to take an unpaid leave of absence from a job to care for an ailing spouse, child or parent. Under the current law, same-sex married couples are only eligible if they reside in a state that recognizes same-sex marriage.
By directing the Department of Labor last week to change the law to recognize marriages based on the state of celebration, any LGBT couple married legally would be eligible for the FMLA leave in order to care for a spouse regardless of whether their state of residence recognizes their marriage.
“That is supposed to be published in the federal register today (June 23),” said Jeffrey Fraser, attorney at Miller Johnson. “For 60 days there is a comment time period. Once the comments are all submitted, the Department of Labor will review them and make a determination as to the final rule. The final rule probably will be published sometime in the beginning of next year.”
Fraser said he expects the Department of Labor will make the change.
“The federal government has been working very hard since the Windsor decision to make sure all federal laws are consistent with the Windsor findings,” he said. “I think there are over 1,000 changes that have been made since the Windsor decision.”
Employers will not have to make any changes until the “state of celebration” change takes effect, with one exception.
Approximately 300 same-sex couples married in Michigan during the short window of time between Judge Bernard Friedman’s decision striking down Michigan’s same-sex marriage ban in March and the issuance of a stay by the Sixth Circuit Court of Appeals.
While Michigan Gov. Rick Snyder said the state of Michigan would not recognize those 300 marriages, the federal government announced it would recognize them.
“Employers ought to be very careful about denying those folks who were lawfully married on that Saturday FMLA time, even while the rest of this legal wrangling is pending,” Fraser said. “We are talking about a federal law for employers in the state of Michigan. For those 300, it’s pretty clear employers need to abide by the FMLA.”
If the Sixth Circuit Court of Appeals upholds Friedman’s ruling when it hears the DeBoer v. Snyder case Aug. 6, Michigan employers may have to extend FMLA leave at that time depending on whether the ruling is appealed.
LGBT individuals are not included under Michigan’s Elliot Larson Civil Rights Act, which means an employer can fire an employee based on sexual orientation. Fraser said he does not believe employers fire employees based on sexual orientation often, but if one did so after the employee requested FMLA leave, it would likely be a waste of time and resources defending an action that would appear to be unlawful.
“If an LGBT individual is eligible for and attempts to exercise FMLA leave rights and is terminated because (of being) LGBT, then the individual will have an FMLA interference claim and/or an FMLA retaliation claim,” he said.