Although the COVID-19 coronavirus has been designated as a pandemic by the World Health Organization, you still have rights under the ADA. The EEOC has provided guidance consistent with these workplace protections and rules. This publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act (which applies to federal employees) principles to answer questions frequently asked about the workplace during a pandemic.
A Better Balance is thrilled to report that married same-sex couples will soon have expanded access to the Family and Medical Leave Act (FMLA)! Earlier today, the Obama administration announced that it will establish a more LGBT-inclusive definition of “spouse” under the FMLA, the federal law that—among other purposes—provides eligible workers with unpaid leave to care for a seriously ill family member. According to the FMLA’s existing definition of “spouse,” an LGBT worker can only take FMLA leave to care for a seriously ill same-sex spouse if the worker lives in a state that recognizes same-sex marriage. This approach falls short, since the majority of states still refuse to recognize same-sex marriages. Under the definition of “spouse” proposed today, legally married same-sex couples living in all 50 states will finally be eligible to take FMLA leave to care for each other!
For many years, A Better Balance has been advocating for changes to the FMLA to ensure that LGBT families enjoy equal access to this important federal law. We have been striving to educate workers about their rights under the FMLA, issuing reports about the need for more inclusive workplace leave laws, and raising awareness through the media about the FMLA’s shortcomings. In January of this year, A Better Balance Senior Staff Attorney Jared Make was quoted in the Houston Chronicle calling on the Obama administration to adopt the rule announced today. We’re excited to see this change take place, as it will extend important protections to many LGBT families!
Until June 2013, the so-called “Defense of Marriage Act” (DOMA) prevented all LGBT workers from taking FMLA leave to care for a seriously ill same-sex spouse or partner. Although the Supreme Court struck down section 3 of DOMA last year and ruled that the federal government could no longer refuse recognition of lawful same-sex marriages, the FMLA definition of “spouse” continues to exclude many same-sex couples. Because FMLA regulations define “spouse” according to the laws of the state in which a worker lives, only LGBT workers who reside in states that recognize same-sex marriage can currently take FMLA leave to care for a seriously ill same-sex spouse. Here is an example that demonstrates the injustice of the FMLA’s current definition of spouse:
- Ben and Ricardo are a recently married same-sex couple who live in New York, and Ben is eligible to take unpaid FMLA leave at his large company. If Ricardo is diagnosed with cancer, Ben can take FMLA leave to care for Ricardo, since the state they live in—New York—recognizes their marriage. However, if Ben’s job relocates the couple to Kansas, which does not recognize their marriage at this time, Ben and Ricardo would no longer be considered spouses under the FMLA.
The rule proposed by the Obama administration today will change this unjust outcome. Under the administration’s proposed definition of “spouse,” Ricardo and Ben will be eligible for FMLA leave and considered spouses regardless of the state in which they live.
Although today’s announcement is a huge step forward for LGBT working families, more work remains:
- First, the rule announced by the Obama administration has only been proposed; until August 11, 2014, the Department of Labor will accept comments weighing in on the proposed rule, and we need your help to ensure that they receive overwhelmingly supportive feedback. We have prepared a sample comment that you can adapt and submit to the Department of Labor to show your support. A Better Balance also submitted an in-depth comment to the Department.
- Second, we need to work together to ensure that more Americans have access to the FMLA as a whole. The FMLA excludes more than 40% of all Americans due to the law’s eligibility requirements, and the law’s definition of “family” only covers spouses, children, and parents. As detailed in the most recent edition of our report Time for a Change, we need to broaden access to the FMLA and expand the law’s definition of family in order to fully meet the needs of LGBT families.
- Finally, many workers who are eligible for the FMLA cannot afford to take unpaid time off under the law. It is time for the United States to join the rest of the industrial world and guarantee paid leave to workers. A Better Balance is working at all levels of government to pass LGBT-inclusive paid leave laws that will help workers to care for their loved ones without risking their financial security.
We look forward to building on the progress of today’s exciting news and will continue our work until noLGBT workers are forced to choose between their jobs and their family responsibilities!