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Bryant Whitten, LLP

FMLA protections post-DOMA

Californians know that on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA). DOMA held that same-sex marriages performed in states that recognize these unions were not to be recognized by the federal government. Now that DOMA has been struck down, the federal government can recognize same-sex marriages performed in Washington D.C. and the 13 states in which these marriages can take place, including California.

The federal government will now extend benefits for married couples to same-sex couples in certain states. One of these benefits is provided by the Family and Medical Leave Act, which allows protected time off from work to eligible employees to care for an immediate family member; immediate family member includes a child, parent or spouse. One caveat is that the definition of spouse under FMLA only applies to an employee's place of residence rather than the place that the marriage was performed. Therefore, a couple who traveled to another state to obtain a same-sex marriage will not be protected by FMLA if their state of residence does not recognize these marriages. As California recognizes same-sex marriage, same-sex partners can benefit from this new change in law.

Employees who have spent at least a year working at least 25 hours per week for an employer of 50 or more workers may take time off from work to take care of a family member without fearing the loss of a job or health care benefits. Same-sex partners who are covered by FMLA will now be able to take this time off work to care for a child with whom they lack a biological or legal relationship.

Californians who are in a same-sex marriage should be delighted that they can now receive the same FMLA leave as heterosexual couples. A lawyer may be a resource for workers who have been discriminated against because of their sexual orientation.

Source: Huffington Post, "DOMA Ruling Expands FMLA Protections", Ellen Bravo, July 18, 2013

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