Family and Medical Leave Act Provisions Extended to All Same-Sex Married Couples.

Regardless of what the U.S. Supreme Court decides in resolving the lower court differences over whether individuals of the same sex can marry in all states, the tidal wave of change in both public opinion and law sweeping over the country only gets higher. The U.S. Supreme Court recently found in U.S. v. Windsor that gay and lesbian couples that were legally married could not be denied the ability to file their federal income taxes jointly from other states, even those which refused to recognize that marriage. To do so for federal tax purposes was found to be a denial of equal protection under the law and therefore unconstitutional. Since marriage status is relevant to a multitude of other civil matters, it is not surprising that other regulations or laws might be revised. So it came to pass last week when the U.S. Department of Labor (DOL) published its final rule on eligibility to take advantage of the Family and Medical Leave Act (FMLA). The rule goes into effect March 27, 2015.  A Fact Sheet and Frequently Asked Questions are available on the DOL website.

The benefits of the FMLA are summarized in the Federal Register:
“The FMLA, 29 U. S.C. 2601, et seq., requires private sector employers who employ 50 or more employees, all public and private elementary schools, and all public agencies to provide up to 12 weeks of unpaid, job-protected leave during any 12-month period to eligible employees for certain family and medical reasons (i. e., for birth of a son or daughter and to care for the newborn child; for placement with the employee of a son or daughter for adoption or foster care; to care for the employee’s spouse, son, daughter, or parent with a serious health condition; because of a serious health condition that makes the employee unable to perform the functions of the employee’s job; to address qualifying exigencies arising out of the deployment of the employee’s spouse, son, daughter, or parent to covered active duty in the military), and up to 26 workweeks of unpaid, job-protected leave during a single 12-month period to an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness for the employee to provide care for the servicemember.”

The original language of the regulation hinged on the definition of “spouse” which varies depending on the state where the employment occurs. To accommodate and extend Windsor, and to remove ambiguity, the FMLA regulatory language has now been changed to define a marriage according to the “place of celebration”— that is to say, the state or country where a legal marriage occurred. Thus, out-of-state legal marriages must be recognized by all states for the purposes of the FMLA.

Other categories of relationships accommodated.
The discussion of the final rule in the Federal Register is illuminating and appears to further expand eligibility for the FMLA in at least some states. For example, it has always been the case that in states where common-law marriages were legal, employees in that state could avail benefits of the FMLA. The revised regulation clarifies in parallel analogy that common-law marriages in states where it is legal must be recognized for the purposes of the FMLA in all states. Furthermore, in situations where an employee is functioning as in loco parentis for any child, the FMLA can be invoked whether that child is biologically theirs, adopted, a child of a domestic partner, or frankly for any child for whom in loco parentis status is claimed.

Surely not everyone agrees.
Not surprisingly there were some 4600 public comments to the proposed new regulation, the “vast number” of which approved. There is no mention in the Federal Register summary that any commenter objected on religions grounds. I suspect that there were many such objections offered, but how could the federal government admit to inserting religious dogma into public regulations? To do otherwise would violate the intrinsic American concept of separation of church and state. While we are told that the U.S. Conference of Catholic Bishops expressed concerns about the regulatory change, these were lumped in with those other commenters having concerns about a variety of administrative commercial burdens on employers such as having to keep track of marriage laws in all other states.

Other considerations.
In terms of what documentation an employee must provide to take family leave, the Final Rule requires only “reasonable documentation” that may include only “a simple statement from the employee,” written or even oral.  In my opinion this is reasonable given that the need to take medical leave can arise unexpectedly and urgently. In this regard, the “Department does not believe any delay in implementation [of the new regulation] is warranted.” Previous iterations of the FMLA required notification of employees about changes within 2 to 5 business days of a regulation being final. In a nod to state authority, nothing in the act is intended “to discourage employers from adopting or retaining more generous leave policies.”

Implications in Kentucky.
Although Kentucky’s constitution and laws prohibit same-sex marriage within the state, and do not recognize legal marriages from other states, a federal judge in Kentucky declared such laws unconstitutional last year. That determination was overruled by the Sixth Circuit Court of Appeals and is now before the U.S. Supreme Court. A decision is expected this year. In the meantime, there are some, perhaps even many employers in Kentucky who choose to refuse to recognize legal same-sex marriages performed in other states. Noteworthy among these are religious institutions including Catholic hospitals and medical centers. In the case of the University of Louisville Hospital, preexisting employee benefits enjoyed within same-sex marriages and domestic partnerships were actually withdrawn when management of the hospital was taken over by KentuckyOne Health, a faith-based corporation. Employees of such entities are faced with unfair and even absurd consequences such as having to file their income taxes jointly as a married couple for federal purposes, but as single in the state. Since Kentucky state returns are based on the federal tax forms, the bizarreness and unworkability of this outcome is obvious. Absurdity is one thing, but denial of employee benefits enjoyed by other colleagues in the same company on the basis of where a legal marriage was performed is now being framed as denial of equal protection under the law. In my opinion, so it should be!

Clarification requested.
I asked the spokesperson of KentuckyOne Health by email to comment on when and how it would notify their employees of the required benefit change. I have not yet had a reply but it occurs to me as I write that I did not give the company the benefit of the doubt when I assumed that KentuckyOne was not already making family leave available to same-sex couples. I admit to being unfair in assuming that because other benefits such as routine employee health insurance are not available to same-sex University Hospital employees in the same manner as they are to other married couples, that FMLA benefits were similarly being offered in a non-uniform manner.  I hope to clarify what benefits are being offered to same-sex marrieds— and which are not— both at KentuckyOne and other Kentucky employers. Please help me.

Closer to home.
Because of my history at University of Louisville Hospital, I have often used it as an example of the consequences of attempting to run a state university, hospital, and medical school while accommodating the religious tenants of another institution. (My readers will be aware that I think it is a bad idea!) Distorting both medical and business decisions around the dogma of any religious institution has yielded what are in my opinion untenable outcomes, some of which have been illustrated earlier in these pages. One of these consequences is that there are now two functional hospitals in what was formerly a single University of Louisville Hospital building. University Medical Center Inc. (UMC), the UofL-controlled previous manager of the hospital, now runs the women’s and children’s services (nominally on a single floor) while all the rest is managed by KentuckyOne Health. While there are other reasons, including access to state funding and programs, this duality was designed to allow Catholic KentuckyOne to be able to claim they were not providing or supporting contraception or sterilization— among other standard medical practices prohibited by the Catholic Church. It is my opinion, and I continue to argue, that this structure is an illusory fig leaf, antithetical to standard ethical medical practice, and which in my opinion is not in any event serving its protective intention.

I have characterized the women’s and children’s services at University Hospital as a “hospital within a hospital.” I have been told that there are actually two sets of employees working under the same roof— one run by UMC that offers same-sex employee benefits, and one run by KentuckyOne that does not. To clarify matters, I asked KentuckyOne how it wishes to characterize its working relationship with UMC. Is there a single hospital, two hospitals, or some other contractual relationship? What are we to surmise when we see the KentuckyOne Health name on the hospital building or see comprehensive women’s services offered on the hospital’s website under the KentuckyOne logo? After all, the hospital runs on a single Medicare provider number and comingles its operational data for purposes of quality and financial reporting to both state and federal agencies. Are two different sets of tax returns submitted to state or IRS? How many federal Forms 990 required of non-profit charitable organizations are being filed? Who keeps track of the employee work hours and processes their checks. Are there really two different sets of personnel trained and managed separately  using two completely different sets of policies and protocols? Is this good medical practice?   Does UMC sub-contract selected medical or support services from KentuckyOne or vice-versa? Are there two different insurance policies? What is the nature of the relationship between the two entities that allows local Catholic authorities and KentuckyOne to assert that they are not materially supporting the practice of contraception, sterilization, or the withholding of fluids and nutrition at the end of life contrary to the requirements of the mandatory Ethical and Religions Directives of the Catholic Church? In my mind those authorities cannot do so. I hope I will get the clarifying responses to the questions I asked of KentuckyOne.  Perhaps UMC will also help, but that entity does not appear to have a website separate from KentuckyOne’s. I do not understand how is it that operating the University of Louisville Hospital does not place KentuckyOne Health and its parent company CHI in a state of scandal as defined by church doctrine?  Surely things can be made clearer than they are now. I want to get it right.

Now is now.
In the meantime we are stuck with what in my opinion are unsupportable consequences of the intrusion of religious practices in the public arena. These include medical consequences such as putting physicians and nurses in the position of feeling that they must falsify the medial record in order to provide contraception to their patients. These also include denial of the full legal benefits and support of marriage to employees and patients who happen to have committed to individuals of the same sex regardless of where they did so formally. What will faith-based companies in Kentucky do if or when same-sex marriage becomes legal across the land?

Are there any readers who would deny the benefits of family medical leave to same-sex married couples today? If so, tell us why. Are there any reasons, other than those of full and frequent procreation such as advocated by the Commonwealth, that are not based on religious belief? I can’t think of any. Is there any UofL official or faculty member who will comment in their own name in support of withdrawal or denial of the employee benefits discussed above to same-sex couples— those benefits currently enjoyed by employees of UofL themselves?  I’ll bet not! So why then has exactly that happened?

Peter Hasselbacher, MD
28 February 2015