Wisconsin employees may have heard about a federal rule that was to become effective on March 27 that allowed employees to take FMLA leave in order to care for a same-sex partner, regardless of whether or not same-sex marriage is legal in the state. On April 6, it was reported that a Texas federal judge granted an injunction to stop enforcement of the rule.
The judge reportedly granted the injunction because it was argued that the U.S. Department of Labor, which issued the rule, did not have the authority to do so. Ultimately, the argument entailed that the rule made the employers have to choose between complying with the federal rule and complying with their state laws. As states define the term spouse differently, this could be confusing for the employers.
As such, same-sex spousal leave rights will not be provided under the FMLA unless the state within which the employee works recognizes same-sex marriage. It is possible, however, that the rule may come back around at a later date.
Since same-sex marriage is legally recognized in Wisconsin, married same-sex couples have certain rights under the Family and Medical Leave Act. Under this act, employers who have more than 50 employees must provide their workers with up to 12 weeks of unpaid leave for family reasons, such as the birth of a child, adoption or if a child or spouse needs care for a serious health condition. If the employer refuses to provide this leave, a federal FMLA attorney may help advocate the employee’s right to take their leave. Additionally, the attorney may also help the employee become reinstated at their job following their leave.
Source: The National Law Review, “New FMLA Spouse Definition Blocked–For Now,” April 6, 2015