8/5/2014 1:01:00 PM State's same-sex couples could get family leave, but impact uncertain
A Labor Department proposal would expand Family and Medical Leave Act benefits to same-sex married couples, regardless of where they live, if they were legally married in a state that recognizes such unions. (Photo by Charles Roffey via flickr/Creative Commons)
The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, but it had only applied to married couples. The Labor Department has proposed expanding it to legally married same-sex couples.
FMLA allows up to 12 weeks of unpaid leave for:
- the birth of a child or care for a newborn;
- adoption or foster care placement of a child;
- caring for a seriously ill spouse, parent or child;
- dealing the the employee's own medical problems.
FMLA would be expanded to same-sex couples by:
- recognizing a marriage by the state where it was performed, not the state where a couple lives;
- explicitly definig "spouse" to include those in same-sex or common-law marriages and some same-sex marriages performed abroad.
The changes would mean:
- same-sex spouses could take FMLA leave to care for each other;
- workers could take leave to for a same-sex spouse's stepchild;
- workers could take leave to care for a parent's same-sex partner.
Public comment on the plan will be taken until Aug. 11.
By Miranda Rivers Cronkite News Service
WASHINGTON - Couples who were legally married in a state that recognizes same-sex unions might be given Family and Medical Leave Act benefits if they work in Arizona - even though the state does not recognize their marriage.
That proposal from the Department of Labor is expected to have little practical impact in Arizona, but advocates still welcomed it for the emotional and political statement it makes.
"As these rules get implemented, people will see the impact of discriminatory laws on their neighbors, their coworkers and colleagues," said Robin Maril, senior legislative counsel at Human Rights Campaign. She believes the shift could "really open people's eyes" to the discrimination same-sex couples have faced.
The Labor Department in June proposed expanding FMLA benefits to legally married same-sex regardless of where they live. That proposal was part of the administration's review of all federal benefits after last year's Supreme Court ruling that struck down the Defense of Marriage Act, defining marriage as between one man and one woman, as unconstitutional.
First enacted in 1993, FMLA guarantees up to 12 weeks of unpaid leave to an employee for the birth of a child or to tend to an ailing family member. It only applies to businesses with more than 50 employees and workers who have been at their jobs for at least a year - and, so far, it has only applied to heterosexual married couples.
Couples would still have to be married, but would not have to be opposite sexes, under the Labor Department plan. A public comment period on the proposal runs through Aug. 11.
Even if enacted as proposed, observers said they did not expect big changes would be felt in Arizona.
The expanded policy would add "some sort of additional comfort or additional acknowledgment" that there is support for same-sex couples, said John Balitis, an attorney at the Phoenix-based law firm Fennemore Craig, who specializes in labor and employment issues.
Advocates do worry that the shift could have one unintended consequence - state lawmakers might use it as reason to keep from offering same-sex couples additional rights, such as the right to marry.
The legislature could say "there is no purpose in us spending any time recognizing that marriage because the federal government has extended the benefit no matter what," Balitis said.
State lawmakers generated headlines earlier this year with passage of SB 1062, which would have let businesses deny service based on religious grounds, such as the owner's opposition to homosexuality.
Much of the opposition to that law, ultimately vetoed by Gov. Jan Brewer, came from state business leaders. Balitis said he does not think that expanding FMLA benefits to same-sex couples is "particularly inconsistent" with the culture of Arizona business, and that companies in the state will adjust.
Garrick Taylor, spokesman for the Arizona Chamber of Commerce, agreed. He said SB 1062 will continue to bring attention to the state's businesses and how they treat same-sex couples.
"I think Arizona's business community is likely going to have to contemplate the issues surrounding same-sex couples, and how they might affect workplace policies or leave policies," Taylor said.
For Maril, expanding the benefits is just a matter of fairness.
She said it would provide an "extra bit of cushion" and promote mobility for workers and their same-sex spouses. She points to the simple fact that "people move states," and this ruling will offer same-sex couples some flexibility when moving from a state that recognizes same-sex marriage.
"People move for all sorts of reasons and they shouldn't have to give up those federal protections just because they moved," she said.