Does an FMLA Marriage Penalty Exist? YES

The Family and Medical Leave Act ( FMLA ) was fashioned to ensure that employees would have a minimum level of unpaid, job-protected leave to take care of a family member with a serious health condition or injury, or themselves while suffering from a serious health condition. The original intent has been expanded to add additional leave benefits for those caring for an injured or seriously ill service member, and to ensure that employees have the ability to take protected leave time to adjust to a service member’s absence from the family due to military service.

The leave was envisioned to ensure that family members could provide care for those who had a serious health condition, injury, or military service-related absences. However, with recent changes in regulations and state legislation that expand protection for nontraditional families or domestic partners, a marriage penalty was born that created a significant imbalance in the amount of leave that a married couple may take versus an unmarried couple.

This inequity is enhanced and highlighted by the recent Colorado Family Care Act that provides state FMLA leave to Colorado employees. On the surface the statute doesn’t seem to add any benefit. However, in the intersection between state and federal law, it effectively doubles the potential leave to 24 weeks per 12 month period if an employee is in a domestic partnership and requests FMLA leave based on the partnership.
If your business has employees in Colorado, you’d better pay attention. This is how it works: Federal FMLA regulations state that nothing in the FMLA supersedes any provision of state or local law that provides greater family or medical leave rights than those provided by the FMLA. The Colorado statute provides that an eligible Colorado employee may take up to 12 weeks of unpaid leave in a 12-month period to care for a domestic partner with a serious health condition. The partner can be of the same or a different sex, and must be in a registered civil union, domestic partnership or a relationship that is recognized by the employer under their personnel policies.

Federal law does not recognize domestic partnerships or civil unions. Thus leave based on a qualifying condition for domestic partner does not qualify for federal FMLA protection and thus the 12 weeks taken for the care of a domestic partner is not counted toward the federal FMLA leave. An employee in Colorado can take 12 weeks of leave to care for their domestic partner, and then take 12 weeks for their own health condition for a total of 24 weeks. The rub is that this additional 12 weeks is not available to a traditional married couple. Because the Colorado law states that it will run consecutively with leave under the federal FMLA, and Federal FMLA specifically addresses leave for a spouse, it limits those in a traditional relationship to 12 weeks maximum.

The rush for fairness to nontraditional relationships has created an imbalance or penalty for those in a traditional relationship and in need of FMLA leave. This also leaves the employer who is strictly following the FMLA regulations, in the position of attempting to explain the penalty to an already stressed employee.

If you are interested in an automated system that keeps up with changes in current employment law, GeniusHR is a HRIS software system that guides HR professionals in complying with the multiple levels of regulations and statutes and ordinances that affect employee leave benefits.

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