A proposed new federal rule would extend protections under the Family and Medical Leave Act (FMLA) to all eligible employees married to same-sex spouses, regardless of where they live. And announcements from the Social Security Administration (SSA) and Department of Veteran’s Affairs (VA) extend other benefits to same-sex couples — up to a point.
The FMLA allows “eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.” The new rule would recognize couples as spouses as long as they have married legally in a state that recognizes their marriage. They would not have to reside in that state, as was previously the case. Married employees could then take time to care for a same-sex spouse regardless of their state of residence, and they would not have to worry about losing that right if they move.
Same-sex parents should be aware, however, that for some time, eligible employees standing in loco parentis (generally speaking, acting as a parent) may take FMLA leave to care for a child, even if they are not the legal parent — that is, even if they are not on the child’s birth certificate and haven’t done a second-parent adoption.. See my post from last year on the subject (but note that I wrote it before the U.S. Supreme Court overturned part of the Defense of Marriage Act last June).
The proposed rule still has to go through a required comment period (as yet unspecified) before it becomes law, but will be a welcome step towards equality for many families. It is never easy to imagine a loved one being ill enough to require FMLA leave, but it’s good to know the protection is there if they are.
The FMLA rule change, however, stands in contrast to an announcement from the Department of Justice (DOJ) this week, that notes both the SSA and the VA are prohibited by federal statute from using the “place of celebration” marriage standard. Instead, they must use the “place of residence.”
Mostly. The SSA says that if a person applies for Social Security benefits while they live in a state that recognizes their marriage, and then moves to a state that doesn’t, the SSA will still recognize the marriage. Additionally, the SSA will recognize some civil unions and other non-marital legal relationships. The bottom line from the SSA website seems to be (my paraphrase), “If you’re not sure if you’re eligible, apply anyway, because you might be.”
Similarly, the VA has said it will recognize marriages of same-sex couples if they applied for benefits while living in a state where their marriage was legal, even if they then moved. They also indicated they won’t scrutinize applications of same-sex spouses any more than those of different-sex ones, saying, “VA will accept a claimant or applicant’s assertion that he or she is married as sufficient evidence to establish a Veteran’s marriage for the purpose of VA benefits.” Another exception is that the VA can now “designate any individual in a committed relationship,” including same-sex spouses/partners, for burial in a national cemetery.
The DOJ said it has done all it can under current law to extend SSA and VA benefits to same-sex spouses, and “looks forward to working with Congress” to change the law so that “Americans who rely on these programs can obtain these essential benefits no matter where they live.”
