The story has been a focal point in the media for months, while the impact of the law on Maryland employers has gone largely unrecognized.
Family and Medical Leave Act
The Family and Medical Leave Act (“FMLA”) entitles eligible Maryland employees to take up to 26 weeks of unpaid leave during a 12-month period for specific reasons. For example, FMLA permits an employee to take such leave to care for a “spouse” who suffers from a serious medical condition.
The Family and Medical Leave Act grants the same type of leave where an “exigency” arises involving a spouse who is on active duty with the military or has been notified of an imminent call to active duty. An employee may take leave to handle issues related to short-notice deployments, military events and activities, rest and recuperation, and post-deployment activities. See 29 C.F.R. § 825.126. With the advent of same sex marriages, gay and lesbian couples now qualify as spouses covered by the Family and Medical Leave Act.
Servicemember Family and Medical Leave Act
This amendment to the Family and Medical Leave Act entitles eligible employees to unpaid leave totaling 26 workweeks during a 12-month period to care for a spouse who is a covered military service member and is undergoing medical treatment, recuperation, or therapy for a “serious injury or illness.” The law defines that term to include medical conditions which were aggravated or incurred as the result of service in the line of duty. This law encompasses spouses in homosexual marriages.
Maryland Flexible Leave Act
Employers with 15 or more employees in Maryland must permit their workers to use accrued paid leave, such as vacation, sick leave, and compensatory time, to care for a spouse who is ill or injured. Employees who have accrued more than one type of leave may choose which category to use.
Employee Benefit Plans
Medical insurance and other benefit programs sponsored by employers permit employees to obtain coverage for spouses. As consequence, employers with operations in Maryland and in states which do not permit or recognize same sex marriages must keep that difference in mind with respect to administering benefit plans.
Employment Discrimination Laws
The Maryland Human Relations Act and some city and county ordinances prohibit discrimination against employees based on their marital status, as well as their sexual orientation. Thus, employers may not discriminate against employees based on the fact they are married to another person of the same sex. The type of discrimination may occur where the employer disapproves of such marriages, but is not biased against employees based on their sexual orientation.
As can been seen, the legality of same sex marriages in Maryland has significant legal consequences for employers operating in that state. That impact may also be felt with respect to individuals who are legally married in this state, but work for Maryland employers with facilities in other states which the Full Faith And Credit Clause of the U.S. Constitution may require to recognize the legality of such unions.
For instance, an employee married in Maryland who is subsequently transferred to such a state may demand FMLA leave to care for a spouse, despite the fact that the marriage could not have been consummated there. Courts have reached and will probably continue to reach different results on the effect of the Full Faith Credit Clause regarding how states treat those marriages, which means that the Supreme Court will eventually weigh in on that issue. In the meantime, employers must deal with that ambiguity in the law as best they can, preferably with the assistance of competent legal counsel.