ASKED & ANSWERED: Jeffrey Kopp on the Family Medical Leave Act

By Steve Thorpe Legal News Twenty years after the Family and Medical Leave Act (FMLA) was signed, workers' rights groups are calling for Congress to expand and modify the law. Jeffrey Kopp is a partner with Foley and Lardner LLP's Detroit office and is a member of the firm's Litigation Department, the Labor & Employment Practice, the Automotive Industry Team and the Trade Secret/Non-Compete Task Force. In his practice, he advises clients on a number of labor and employment issues including FMLA, military leave and benefits issues. Thorpe: How did the FMLA come to be? Kopp: Congress enacted the FMLA in 1993 to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. The FMLA seeks to accommodate the legitimate interests of employers, on one hand, and promote equal employment opportunity for employees, on the other. Thorpe: What are some of the provisions of the act? Kopp: The FMLA generally provides qualifying employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. Employees may take FMLA leave for the birth and care of the newborn child, for placement with the employee of a child for adoption or foster care, to care for a spouse, child, or parent with a serious health condition; for certain military contingencies, and for medical leave when the employee is unable to work because of his or her own serious health condition. Thorpe: On Aug. 9, Labor Secretary Thomas Perez issued guidance clarifying that same-sex spouses are eligible for some FMLA protections. What did he have to say and what does it mean? Kopp: While the Department of Labor has not yet actually issued new regulations, following the U.S. Supreme Court's decision in United States v. Windsor, Secretary Perez announced that the Department has revised its FMLA Fact Sheets and issued a memo to Department of Labor (DOL) staff confirming that the definition of "spouse" under the FMLA also includes same-sex spouses. This guidance affirms that FMLA provisions that pertain to leave to care for a "spouse" apply as well to same-sex spouses in those states that recognize same-sex marriage, as well as to federal government employees. Thorpe: After the change, the definition of "spouse" now reads: "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 and same-sex marriage." Why are state laws the litmus test? Kopp: Our federal government has traditionally deferred to state laws regarding domestic relations, such as marriage. Prior to the Windsor decision, however, the Department of Labor opined that because the FMLA is a federal law, the definition of marriage under the Defense of Marriage Act (DOMA) limited the definition of "spouse" under the FMLA to include a marriage between a man and a woman. As a result of the Supreme Court's decision, Secretary Perez has indicated that the regulatory language deferring to state law on the definition of "spouse," to include same-sex marriages, now governs. Thorpe: Do you anticipate future changes to FMLA and what might they be? Kopp: I certainly anticipate future changes to the FMLA might include further guidance on whether the FMLA extends to same-sex couples who work, but do not reside, in a state that recognizes same-sex marriage. I also foresee paid medical leave on the horizon. There have been bills introduced in Congress that would require employers to provide paid or partially paid medical leave under the FMLA. Currently, some states and cities, such as Connecticut, the District of Columbia and San Francisco, have such laws and ordinances. It is likely that in the future we could see a federal law embracing a paid medical leave concept for all employers governed by the FMLA. Published: Wed, Sep 25, 2013

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