The Negative: Despite Improvements, FMLA Still Leaves Nontraditional Families Unprotected

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By: Mariah L. Passarelli, Esq.

In our last blog entry, we discussed the newly expanded definition of “child” in the Family Medical Leave Act (FMLA). While this new change in the definition of “child” is certainly a welcome move in the right direction, a glaring inadequacy remains in the law – the definition of “spouse” covers only heterosexual married couples. This means that employees in a same-sex or unmarried heterosexual relationship do not qualify for FMLA leave to care for a partner who becomes seriously ill. The rule remains true no matter how long the couple has been in a committed relationship and whether the couple has children together.

This limited definition of “spouse” is caused, in part, by the federal Defense of Marriage Act (DOMA) which prohibits the interpretation of the word “spouse” in federal laws from being given any meaning other than a traditional male/female husband and wife pairing. Moreover, since the FMLA is a federal law, this exclusionary definition of “spouse” remains true even in situations where a gay or lesbian couple has been legally married in one of the states that permit same-sex marriage.

Thus, while progress has been made in updating the FMLA coverage to reflect the make-up of modern families, much remains to be done. Once again, until DOMA is relaxed or eliminated, it appears that the FMLA must remain in the column of rights not fully enjoyed by non-traditional couples and families.

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