FMLA Insights - Guidance & Solutions for Employers

Illinois currently has no equivalent of the federal Family and Medical Leave Act.  Soon, it may.  And unlike the FMLA, the proposed Illinois leave law would allow civil union partners the same leave entitlements currently enjoyed by married couples.  Notably, because of the conflicting parameters of state and federal law, the proposed Illinois Family and Medical Leave Act, which recently hit the floor of Illinois House of Representatives, actually would afford civil union partners greater leave benefit rights than married couples.

Let me explain.

The Illinois Religious Freedom Protection and Civil Union Act, which became law on June 1, 2011, provides that partners in a civil union are entitled to the same rights, benefits and privileges as those in traditional marriages.  Under this Act, wherever the term "spouse" appears within any Illinois statute, it must be read to include "partners in a civil union."

Like its federal counterpart, the Illinois FMLA would extend leave benefits to "spouses."  Because "civil union partners" are now the equivalent of "spouses" in Illinois under the Civil Union Act, civil union partners would be able to take leave to care for their civil union partner under the Illinois FMLA.

This leaves employers with operations in Illinois in a bit of an inadvertent quandary.  Currently, civil union partners cannot utilize leave rights under the federal FMLA because it is governed by the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  So, if an employee in a civil union takes leave to care for his/her partner under the proposed Illinois FMLA, it would count against the leave entitlement under Illinois law, but not under the FMLA. 

To illustrate, let's pretend I am your employee and a partner to a civil union.  I also am otherwise eligible for leave under the FMLA and the proposed Illinois FMLA (meaning, I have worked for you for 12 months and have worked 1,250 hours in the past 12 months).  If I take a two-week leave of absence to care for my partner with a serious health condition, I will have exhausted two weeks of Illinois leave, but I have not exhausted any portion of my 12 weeks of FMLA leave (because FMLA, of course, does not recognize my civil union).  In theory, I could take up to 24 weeks of leave in a 12-month period -- 12 weeks under the Illinois FMLA to care for my civil union partner, and 12 weeks for any eligible reason under the FMLA.

Insights for Employers

If the Illinois FMLA becomes law, we will advise employers further.  In the meantime, let me address a more immediate issue.  Over the past several years, I have counseled employers who voluntarily have chosen to provide federal FMLA leave to domestic and civil union partners.  Clearly, this is a growing phemonenon among Fortune 500 companies and leading business.  

Keep in mind as you develop these FMLA leave policies: if your policy provides employees leave to care for a domestic or civil union partner, employers cannot count this leave under the employee's 12-week FMLA allotment, since (as noted above) the FMLA does not recognize these relationships.  To ensure that you are not unintentionally setting yourself up for an FMLA interference claim when providing leave to domestic or civil union partners, we recommend that employers contact their employment counsel for guidance as to best practices in this area. 

Earlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee's son or daughter.  In a press release, Sen. Tester said he introduced the bill because the "last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss."  The Act would allow leave "because of the death of a son or daughter," and it assumes leave would be taken in one block.  Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees.  Like the FMLA itself, the bill would apply only to employers of 50 or more employees.

Although the Parental Bereavement Act currently has no co-sponsors, it likely has a better chance of passage than the recently-introduced FMLA Inclusion Act (H.R. 2364, S. 1283), which would provide unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.  The latter bill, which has been introduced in Congress several times before, likely would not enjoy the support of a Republican-controlled House of Representatives, even if it were to pass the Senate. 

These bills are among several legislative initiatives that have been introduced in Congress over the past year to amend (and often enlarge) the scope of the FMLA.  The latest proposal under the Parental Bereavement Act is intriguing, since it builds upon a grass roots initiative imploring Congress to pass legislation providing job-protected leave upon the death of a child.  The initiative is led by Kelly Farley and Barry Kluger, both of whom lost children at a very young age.  Realizing that he could not take FMLA-protected leave upon his daughter's death (because it is not provided for under the FMLA), Farley instead submitted FMLA paperwork seeking leave to care for his wife, who was dealing with depression in the aftermath of the tragic event.  In reality, he suggests, he needed leave to care for himself. 

Last week, my colleagues, Bill Pokorny and Josh Meeuwse, and I conducted a complimentary Webinar for our clients and friends of the firm regarding the ADA Amendments Act and its final regulations, which take effect May 24, 2011. 

You now can access the archived version of the Webinar and the presentation materials here.  The Webinar provides an overview of the changes to the ADAAA and its regulations and offers strategies for avoiding and defending against potential disability discrimination claims. 

Effect on the FMLA: The ADAAA significantly expands the number of employees who are considered "disabled."  Consequently, employees who suffer from serious health conditions covered by the Family and Medical Leave Act now also may be covered by the ADAAA.  While covering several common workplace issues, our Webinar specifically addresses how to handle an employee who has exhausted FMLA leave but needs additional leave before returning to work. 

For additional information about the ADAAA and how it will impact your workplace, you also can access our comprehensive summary of the ADAAA final regulations here (pdf).

In a ceremony to be held later today at the Chicago Cultural Center, Illinois Governor Pat Quinn will sign a law allowing same and opposite-sex couples to enter into civil unions. Under the law, such couples are "entitled to the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law." But what effect will this new law have on employees' rights under federal laws like the FMLA?

The FMLA regulations provide that the meaning of the term "spouse" is defined by state law: 

Spouse. Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in States where it is recognized.

Because the FMLA relies upon the state's definition of "spouse," and because the new civil union law says that parties to a civil union have the same rights and responsibilities as spouses for purposes of state law, one could make the argument that the new law extends FMLA rights to couples joined in a civil union. However, that argument is not likely to carry the day in court, at least for the time being.

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The Illinois Family Military Leave Act allows eligible employees who are the spouse or parent of a person called to military service to take unpaid leave during the family member's military service. Under the law, employees who work for an employer with more than 50 employees may take up to 30 days of leave. Employees working for employers with 15 to 50 employees can take up to 15 days of family military leave. Presently, this leave is in addition to the family military leave leave available under the federal Family and Medical Leave Act.

A new law recently signed by Governor Quinn amends the Family Military Leave Act to extend leave to children and grandparents of service members as well as spouses or parents. However, if an employee also uses "qualifying exigency" leave under the FMLA, the amount of leave available under the Illinois law will be reduced by the number of days the employee takes under the FMLA.

The amendment takes effect January 1, 2011.

Gay and lesbian employees in the Illinois Treasurer's office who are in a committed relationship will enjoy the same FMLA benefits as married employees under an executive order signed by state treasurer (and U.S. Senate candidate) Alexi Giannoulias Sunday.  As a result, these employees will have the same family and medical leave benefits to care for their domestic partner when they suffer from a serious health condition and will be allowed to take time off to have or adopt children.

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