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Employers More Effectively Managing Leave Laws
Same-sex marriage, other changes make for continuing challenges

By Stephen Miller, CEBS  2/12/2014

Although the Family and Medical Leave Act (FMLA) and other leave laws are increasingly being integrated into corporate processes, ongoing legal and regulatory changes continue to present challenges for employers, according to the 2013 Employer Leave Management Survey released by the nonprofit Disability Management Employer Coalition (DMEC).

Survey respondents represented U.S. organizations of all sizes, from a broad range of industries. Key results include:

  • Almost half of employers find that training supervisors in leave processes is extremely difficult.

  • More than half of respondents described the relationship between HR/benefits and risk management functions as successful or positive.

  • More than half of the organizations use internal legal resources to ensure compliance with leave laws.

  • 68 percent of employers centralize leave management.

  • 90 percent of respondents indicated that HR is involved in tracking and managing leave.

  • Leave outsourcing has increased by 16 percent over 2012, with 34 percent of employers outsourcing FMLA leaves.

  • 5 percent of employers outsource Americans with Disabilities Act accommodation leaves.

  • Businesses with 500 to 999 employees are most likely to use externally developed leave tracking systems but run them internally.

“Employers of all sizes and in all industries have a good grasp on the laws and regulations regarding leave and are more effectively integrating mandated leave into their business processes,” said DMEC Executive Director Terri L. Rhodes , in an e-mail to SHRM Online. “As the FMLA turned 20 years old in 2013, effective and compliant leave administration has become a necessity for many employers who want to maintain a competitive advantage, and it represents a source of revenue growth for their vendor partners. Even greater commitment and coordination will be necessary as same-sex marriage and other laws continue to evolve and impact employer leave policies.”

Same-Sex-Marriage Challenges

In particular, new rights for same-sex spouses, arising from the Supreme Court’s 2013 decision United States v. Windsor—which invalidated key portions of the federal Defense of Marriage Act (DOMA)—are driving changes in corporate leave practices, the DMEC found. Employers must now allow workers who live in states that recognize same-sex marriage to take FMLA leave to care for a same-sex spouse who has a serious health condition or to fulfill obligations such as child care and related activities arising from a spouse being called to active duty. Conversely, in states that do not recognize same-sex marriages, these benefits do not have to be provided.

Although FMLA rights are extended to employees based on whether their state of residence legally recognizes same-sex marriage and not on the law of the state they work in, the U.S. Department of Labor (DOL) announced that in 2014 its Wage and Hour Division would issue a proposal to revise the FMLA definition of “spouse.” One possibility is that the DOL will implement a "place of celebration" rule, so that FMLA leave will no longer be based on an employee's state of residence but be determined by whether the same-sex marriage was valid where performed.

Stephen Miller, CEBS, is an online editor/manager for SHRM.

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