It’s My Spouse, I’m Leaving

In 1993, Congress passed the Family Medical Leave Act (“FMLA”) which provides employees the right take medical leave for (1) the birth of a child or to bond with a child, (2) the placement of a child for adoption or foster care, (3) a serious health condition that prevents the employee from his or her job, and (4) the care of the employee’s spouse, son, daughter, or parent who has a serious health condition. In this article, I will focus on the definition of “spouse”, the expanded definition, and highlight FMLA’s key provisions.

“Spouse” was initially based upon the traditional definition of marriage being between a husband and a wife. Put simply, a spouse was only a person who was married to a person of the opposite sex. As society continued to change, this impacted many employees’ ability to care for their significant other or spouse. For example, employers were not required to return the employee to his/her position and could retaliate against them if the employee requested medical leave to care for a person of the same sex with a serious health condition because this was not a FMLA qualifying reason.

After the Supreme Court’s decision in United States v. Windsor, the Department of Labor (“DOL”) expanded the definition of spouse to include same sex marriage. While this appeared as a victory for same-sex marriages, it had its own limitations because it only recognized same-sex marriages for employees that lived in states that recognized same sex marriages. This affected employees in states like Texas where same-sex marriages were not recognized.

About two years later, DOL revised the definition of spouse to include all persons in legal marriages, regardless of where they live. DOL further explained that the residence of the employee was no longer the determining factor of a legal marriage. The focus became where individuals were married, sometimes referred to as the “place of celebration”. Additionally, DOL provided that a spouse is an individual in a state that lawfully recognizes common law marriages. Texas recognizes common law marriages. Therefore, a spouse in a common law marriage is considered a spouse for purposes under FMLA.

One of the pitfalls with common law marriages, under the FMLA, is that many common law marriages lack documentation to support that a common law marriage has been established. This is important because employers are allowed to request documentation proving your relationship with your spouse. For this article, I will not discuss how common law marriages are formed and what documentation can be used to support common law marriages, but I will encourage you to consult with a family law attorney to ensure you and your spouse meet the legal definition and can provide documentation supporting that you are common law married.

The expanded definition of “spouse” did not modify the core of the Family Medical Leave Act; rather, it extended coverage to employees who may not have initially been able to take leave to care for their spouse. Under the FMLA, an employee is eligible for 12 weeks of unpaid, job-protected leave per year so long as (1) the employee has worked for his/her employer at least 12 months, (2) the employee has worked at least 1,250 hours over the past 12 months, and (3) the employer employs 50 or more employees within 75 miles of where the employee works.

If you are concerned whether you are eligible for FMLA or if have been denied leave to care for your spouse, please contact my office immediately to schedule a consultation.







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