By Martha J. Cardi, Reed Group Chief Compliance Officer
Currently, 15 states and the District of Columbia officially recognize some form of union between individuals of the same gender. These are variously designated as domestic partnerships, civil unions, or same-sex marriages. The legal effect of these unions varies from state to state. This article provides a brief overview of the laws in those states that authorize some sort of same-sex union.
Generally, these laws do not have the effect of requiring a private employer to extend typical spousal benefits to same-sex partners, such as health insurance and leave to care for an ill partner. There may be other state laws, however, that do have a direct impact on employer-employee relations, such as a state family leave law that allows time off to care for a same-sex partner.
States with some sort of same-sex union are summarized below in alphabetical order. For each state, this article provides the following information:
- Type of union authorized and definition
- Effective date
- Brief explanation of rights/obligations
- Link to the statute or other relevant source
California — Domestic Partnerships
Effective Date: June 30, 2005
Registered domestic partners have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
“Domestic partners” are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. A domestic partnership is established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State.
Presently, domestic partnerships are available to same-sex couples, and to opposite-sex couples in which at least one party is over 62 years of age.
Effective January 1, 2012, domestic partnership eligibility requirements will be identical to those of marriage (e.g., not requiring the maintenance of a common residence).
Domestic Partnership Registry: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=297-297.5
Conversion of eligibility requirements: http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html
Connecticut — Same-Sex Marriage
Effective Date: April 23, 2009
Same-sex couples may marry and have all the same rights as opposite-sex couples.
“Marriage” means the legal union of two persons. . . . The registrar must issue a license to any two persons eligible to marry under the laws of Connecticut.
“Wherever in the general statutes or the public acts the term “husband”, “wife”, “groom”, “bride”, “widower” or “widow” is used, such term shall be deemed to include one party to a marriage between two persons of the same sex.”
Connecticut previously recognized civil unions. Effective October 1, 2010, civil unions ceased to be provided and existing civil unions were automatically converted to marriages. Voluntary conversion was available prior to this date upon passage of the act.
Same-sex marriage statute: http://www.cga.ct.gov/2009/ACT/Pa/pdf/2009PA-00013-R00SB-00899-PA.pdf
Delaware — Civil Unions
Effective Date: January 1, 2012.
Parties to a civil union recognized by Delaware law will have all the same rights, protections and benefits, and will be subject to the same responsibilities, obligations and duties under the laws of the state . . . enjoyed by or imposed upon married persons.
“Civil union” means a legal union between two individuals of the same sex established pursuant to Delaware law.
District of Columbia — Same-sex Marriage and Domestic Partnerships
Same-Sex Marriage: Effective Date: March 3, 2010
Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is otherwise expressly prohibited.
Same-sex marriage licenses became available in the District of Columbia on March 3, 2010, and marriages began on March 9, 2010.
“Where necessary to implement the rights and responsibilities relating to the marital relationship or familial relationships, gender-specific terms shall be construed to be gender neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.”
Religious Freedom and Civil Marriage Equality Amendment Act of 2009: http://www.davidcatania.com/publicdocuments/Signed_Marriage_Bill.pdf
Domestic Partnerships: Effective 2002 – January 1, 2011
Domestic partnerships were allowed in the District of Columbia prior to same-sex marriages. The ability to register a new domestic partnership in DC expired as of January 1, 2011. Parties to existing domestic partnerships may apply for a marriage certificate and convert the partnership to a marriage. The domestic partnership dissolves as of the date of the marriage.
DC’s domestic partnership laws went through many amendments. Information can be found at: http://dchealth.dc.gov/doh/cwp/view,a,3,q,573324,dohNav_GID,1787,dohNav,%7C33110%7C33120%7C33139%7C.asp
Hawaii — Civil Unions
Effective Date; January 1, 2012.
Partners to a civil union will have all the same rights, benefits, protections, and responsibilities under law as are granted to married persons.
“Civil union” means a union between two individuals
of either the same or opposite sex established pursuant to Hawaii law.
Civil union statute: http://www.capitol.hawaii.gov/session2011/Bills/SB232_HD1_.HTM
Illinois — Civil Unions
Effective Date: June 1, 2011.
A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.
“Civil union” means a legal relationship between two persons, of either the same or opposite sex.
Illinois Religious Freedom Protection and Civil Union Act: http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1513
Iowa — Same-sex Marriage
Effective Date: April 3, 2009
Same-sex marriages are permitted in Iowa.
As currently stated, Iowa Code § 595.2 limits civil marriage to a man and a woman. However, in 2009 the Iowa Supreme Court struck that language from the statute as a violation of the equal protection clause of the Iowa Constitution.
The remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
Maine — Domestic Partnerships
Effective Date: July 30, 2004
Registered domestic partners have legal status similar to that of married persons with respect to certain rights (e.g., inheritance without a will, making funeral and burial arrangements, entitlement to be named a guardian or conservator if partner becomes incapacitated or to be named a representative to administer a deceased partner’s estate, entitlement to make organ and tissue donation and explicit protection in the state’s domestic violence laws).
“Domestic partner” means one of two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.
Nevada — Domestic Partnerships
Effective Date: June 1, 2009
Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law as are granted to and imposed upon spouses.
“Domestic partners” means persons who have registered a valid domestic partnership with the state pursuant to law and have not terminated that domestic partnership.
Nevada Domestic Partnership Act: http://www.leg.state.nv.us/NRS/NRS-122A.html
New Hampshire — Same-Sex Marriage
Effective Date: January 1, 2010
Marriage is the legally recognized union of two people. Any person who otherwise meets the eligibility requirements for marriage may marry any other eligible person regardless of gender. Each party to a marriage shall be designated “bride,” “groom,” or “spouse.”
New Hampshire previously recognized civil unions. All civil unions will be merged into marriage no later than January 1, 2011, unless otherwise annulled or dissolved.
An act relative to marriage and civil unions: http://www.gencourt.state.nh.us/legislation/2009/HB0436.html
New Jersey — Civil Unions and Domestic Partnerships
Effective Date: February 19, 2007.
”Civil union” means the legally recognized union of two eligible individuals of the same sex established pursuant to New Jersey law. Parties to a civil union receive the same benefits and protections and are subject to the same responsibilities as spouses in a marriage.
Same-sex couples registered as domestic partners may enter into a civil union with the same person without terminating their domestic partnership first. If the domestic partnership was registered in New Jersey, it automatically terminates when the civil union is registered.
Domestic Partnerships registered prior to February 19, 2007 remain valid and are afforded the rights and benefits of Domestic Partners. New Domestic Partnerships are limited to same or opposite sex partners 62 years of age or older.
An act concerning marriage and civil unions: http://www.njleg.state.nj.us/2006/Bills/PL06/103_.HTM
Domestic Partnership Act: http://www.njleg.state.nj.us/2002/bills/pl03/246_.htm
NJ Attorney General Formal Opinion No. 3-2007: http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf
New York — Same-Sex Marriage
Effective Date: July 24, 2011
Same-sex marriages are permitted. “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.”
“It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law.” Marriage Equality Act: http://assembly.state.ny.us/leg/?default_fld=&bn=A08354&term=2011&Summary=Y&Text=Y
Oregon — Domestic partnerships
Effective Date: February 4, 2008
Domestic partners are treated the same as married spouses. Any privilege, immunity, right, or benefit granted or imposed by any law or other authority to an individual because the individual is or was married is granted on equivalent terms to an individual in a domestic partnership. “Domestic partnership” means a civil contract entered into in person between two individuals of the same sex who are at least 18 years of age, who are otherwise capable, and at least one of whom is a resident of Oregon. Oregon Family Fairness Act: http://www.leg.state.or.us/07reg/measures/hb2000.dir/hb2007.en.html
Vermont – Same-sex Marriage
Effective Date: September 1, 2009.
“Marriage” is the legally recognized union of two people, regardless of gender.
Vermont previously recognized civil unions. As of September 1, 2009, new civil unions are no longer available. Civil unions entered into prior to September 1, 2009 will remain valid.
Marriage Equality Act: http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf
Washington – Domestic Partnerships
Effective Date: December 3, 2009
State registered domestic partners are treated the same as married spouses. Any privilege, immunity, right, benefit, or responsibility granted by any law or other authority to an individual because the individual is or was married is granted on equivalent terms to an individual in a state registered domestic partnership.
Couples of the same sex or in which at least one of the partners is age 62 or older may become registered domestic partners.
State Registered Domestic Partnerships: http://apps.leg.wa.gov/RCW/default.aspx?cite=26.60
Wisconsin – Domestic Partnerships
Effective Date: January 1, 2010
Registered domestic partners in Wisconsin are afforded some of the spousal benefits of marriage (e.g., inheritance and survivor protections, state family and medical leave, medical/hospital visitation rights, and exemption from the real estate transfer fee).
Same-sex Domestic Partnerships: http://legis.wisconsin.gov/statutes/Stat0770.pdf
Summary of effects of same-sex domestic partnership: http://www.wisbar.org/AM/Template.cfm?Section=Search&CONTENTID=87323&TEMPLATE=/CM/ContentDisplay.cfm#45
By Martha J. Cardi, Reed Group Chief Compliance Officer
Handling FMLA absences is a balancing act . . . don’t call the employee on leave too often, don’t call too seldom (or neglect to return calls).
Recently we reported on the employer’s right to require an employee to check in periodically during FMLA leave (read here). In a side note, we mentioned that contacting the employee on FMLA leave too often can create an interference claim (see box, “The Other Side of the Coin”).
Now a federal court has ruled that a supervisor’s failure to return an employee’s calls during leave can support an FMLA retaliation. So here is how it appears to add up:
- Too many calls + employee stress = FMLA interference
- Too few calls + discipline or termination = FMLA retaliation
How does an employer get it “just right”?
|We recommend that employers:
See further guidance below after reading about an employer whose supervisor didn’t get it just right.
The Employee’s Leave. Kathleen Hofferica was employed by St. Mary Medical Center when she became ill. In April 2008 she applied and was approved for intermittent FMLA leave through February 2009. In September 2008 Hofferica’s physician informed her that she needed to undergo a series of surgeries as treatment for her condition. She commenced a continuous leave and anticipated returning to work on November 6, 2008. During her leave Hofferica or her husband called Hofferica’s supervisor each week to provide updates on her progress and her anticipated RTW date. Hofferica claimed that the supervisor often failed to return her calls. In particular, Hofferica claims that:
- She called her supervisor on November 4 to explain that her physician might postpone her RTW date. The supervisor never returned the call.
- She called on November 6 to inform her supervisor that Hofferica’s physician had cleared her to return to work on November 13, and to request “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”. The supervisor did not return this call.
Hofferica received a letter from St. Mary dated November 7, stating that she had been terminated because her FMLA leave of absence had expired and she had not returned to work.
What happened next? Of course, Hofferica sued St. Mary, alleging FMLA interference and retaliation. The interference claims were dismissed, but the retaliation claim survived. The court held that:
- The supervisor’s failure to return Hofferica’s calls reflected an antagonistic attitude toward the employee and her use of FMLA; and
- This antagonism could lead a jury to conclude that Hofferica was fired in retaliation for her leave usage.
As a result, St. Mary has a choice – pay Hofferica to settle, or pay their attorneys to proceed to trial.
Hofferica v. St. Mary Medical Center, No. 10-6026 (E.D.Pa. September 20, 2011).
Lessons for employers.
- Set a Procedure. Establish a consistent and compliant procedure for communications with an employee during an FMLA leave. Not too much, not too little. The employer is permitted under FMLA to require the employee to report in periodically during the leave of absence. It is also alright for the employer to check in with the employee if he or she hasn’t called. The appropriate frequency for communications with the employee will depend on the length of the leave, its purpose, and the information previously provided by the employee. For more tips on call-in policies, see “What Employers Should Do” (here).
- Train Supervisors. Supervisors are not expected to be FMLA experts. However, if they don’t have a general understanding of employee / employer rights and obligations under the FMLA – including communications procedures – they are likely to express intolerance of or frustration about a subordinate’s use of FMLA time off or call and disturb the employee during the leave. Such an attitude might discourage an employee from asking for and/or using as much FMLA time as he or she needs and is entitled to. This “chilling effect” can be enough to create a claim for interference. (See “The Other Side of the Coin”, linked above.)
- Bonus lesson! Although the employee in the Hofferica case did not assert a claim under the Americans with Disabilities Act, she could have done so. Even if an employee exhausts her FMLA leave, an extended leave of absence might be a reasonable accommodation for an employee with a disability. Hofferica set up a possible claim under the ADA by requesting in her last message to her supervisor, “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”. Why Hofferica did not assert this claim in the lawsuit is unknown; it could have provided the employer with even more to worry about. See our prior discussions of this topic (ADA Lawsuits on the Rise here and The EEOC Beat Goes On here).
- Train HR. Train your HR managers to follow appropriate contact and communication protocols in accordance with the procedure you have established. They need to know when and how to be proactive in communicating with employees on leave and when to back off.
Sometimes it helps to have outside assistance if you are not sure you are handling communications as well as possible. If Reed Group is administering your FMLA leaves we manage communications with employees in compliance with the FMLA while taking advantage of all rights the FMLA provides to employers. Call 1-866-218-4650 if you would like to explore this option with Reed Group.
By Martha J. Cardi, Reed Group Chief Compliance Officer
Last quarter we wrote about how employers can curb FMLA abuse by creating a toolbox for absence management which includes a strong attendance policy. View. Reed Group now recommends adding to your toolbox: the sick leave policy.
Employers are often concerned that employees are misusing FMLA time or company paid sick. Here are two great examples of how employers’ sick leave policies have effectively curbed FMLA abuse and survived courtroom scrutiny.
CASE 1: Pellegrino v. Communications Workers of America. A case decided earlier this year emphasizes that time taken under FMLA does not provide unfettered job protection. Instead, an employee must still abide by all workplace rules while exercising rights under the FMLA. The employee’s FMLA leave, the employer’s sick leave policy, and the court’s decision are set forth below.
The employer’s sick leave policy: The employer’s manual included a policy entitled Sickness and Absenteeism. This policy provided wage replacement for eligible employees on medical leave subject to certain restrictions, including that employees remain in the immediate vicinity of their homes during the period of sick leave. The policy contained exceptions if an employee needs medical treatment, must attend certain personal or family activities, or if an employee receives written permission from the company to travel. This policy was separate from the company’s FMLA policy, but the Sickness and Absenteeism policy did note that the company provides unpaid leave in accordance with the FMLA and that FMLA runs concurrently with the sick leave.
The employee: Denise Pellegrino sought an FMLA leave of absence in order to undergo a hysterectomy. Included in the FMLA packet sent to Ms. Pellegrino by her employer was a letter noting that the process for medical certification under FMLA was separate from the eligibility process to receive wage replacement under the sick leave policy. The letter also stated that under the policy, if she met the qualifications, Ms. Pellegrino would be required to use her paid leave during her FMLA leave.
The employer approved Ms. Pellegrino’s FMLA leave and also paid her wages under the Sickness and Absenteeism policy. Two weeks after Ms. Pellegrino’s hysterectomy surgery and while on her approved leave of absence, Ms. Pellegrino traveled to Cancún where she stayed for 7 days. Ms. Pellegrino did not receive written permission from her company to travel nor did she request vacation time during the dates she was in Cancún. Upon return and after admitting the trip to her employer, the company fired Ms. Pellegrino for not following the Sickness and Absenteeism policy.
The court: The court noted that the FMLA does not prevent an employer from instituting policies to prevent the abuse of FMLA leave as long as the policies do not conflict with an employee’s FMLA rights. Also, the court stressed that the FMLA will not shield an employee from termination if the employee was allegedly involved in misconduct related to the FMLA leave.
The court determined that the Sickness and Absenteeism policy served several legitimate purposes including providing the benefit of wage replacement during a leave of absence that would otherwise go unpaid and also ensuring that the privilege of paid sick leave is not abused by employees. In fact, the court contemplated that a sick leave policy providing wage replacement during unpaid FMLA leave actually serves to encourage, rather than discourage, an employee’s use of FMLA.
Pellegrino v. Communications Workers of America, 2011 WL 1930607 (W.D.Pa 2011)
CASE 2: Callison v. City of Philadelphia. This case was cited during the court’s review of Ms. Pellegrino’s claim and, although not as recent, also holds a key lesson for employers. In 2005, the federal Third Circuit determined that an employer’s sick leave call-in procedure which set forth employees’ obligations when using the company’s paid sick time did not run afoul of the FMLA.
The employer’s sick leave policy: The employer’s handbook contained a sick leave policy that required employees out on paid sick leave to notify the company’s Sick Control hotline when leaving home and again upon returning. The policy further stated that while on sick leave, the employee was to remain at home except for personal needs related to the reason for being on sick leave. The policy informed employees that a sick leave investigator might call or visit an employee on sick leave unless the employee has 150 days or more of accumulated sick leave credit.
The employee: David Callison used 26 days of sick leave in January 2000 and subsequently 12 days the following year. Because of his frequent use of sick leave in 2000, Mr. Callison was placed on the company’s Sick Abuse List in 2001, which meant that he had to obtain medical certification for all sick days and was subject to progressive penalties for violations of the sick leave policy.
After being placed on the Sick Abuse List, Mr. Callison took another sick day and never notified the Sick Control Hotline that he was leaving his home that day; an investigator called his residence when Mr. Callison was not there. Mr. Callison then received a warning for violating the sick leave policy.
Following this incident, Mr. Callison went out on approved FMLA leave and also received sick pay during the absence. While Mr. Callison was on leave, the employer investigated and found that Mr. Callison was not home on two occasions and failed to notify the Sick Control Hotline that he was leaving his home. Mr. Callison received one- and three-day suspensions, respectively, for failing to notify the hotline that he was leaving his home.
The court: Notably, the court stated that employees do not have a right to be “left alone” while on a leave of absence from work and employers may ensure that employees do not abuse the leave. The court determined that the employer’s Sick Abuse List and corresponding progressive discipline as well as the call-in hotline procedure did not compromise an employee’s FMLA rights because the employer was simply ensuring that their employees did not abuse leave.
Callison v. City of Philadelphia, 430 F.3d 117 (3rd Cir. 2005)
Check your sick leave policy! As these two cases demonstrate, an employer can combat leave of absence abuse by putting in place an across-the-board sick leave policy that allows the employer to verify that employees are using paid sick days for the proper reasons. This means the employer can even require approval of an employee’s errands or travel away from home. The key here is that the employers’ policies were related to employee use of paid sick leave, not for unpaid FMLA use.