In a ceremony to be held later today at the Chicago Cultural Center, Illinois Governor Pat Quinn will sign a law allowing same and opposite-sex couples to enter into civil unions. Under the law, such couples are "entitled to the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law." But what effect will this new law have on employees' rights under federal laws like the FMLA?

The FMLA regulations provide that the meaning of the term "spouse" is defined by state law:

Spouse. 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 in States where it is recognized.

Because the FMLA relies upon the state's definition of "spouse," and because the new civil union law says that parties to a civil union have the same rights and responsibilities as spouses for purposes of state law, one could make the argument that the new law extends FMLA rights to couples joined in a civil union. However, that argument is not likely to carry the day in court, at least for the time being.

First, even if Illinois followed the lead of other states and recognized same-sex marriages, the Defense of Marriage Act ("DOMA") restricts the definition of "marriage" and "spouse" for purposes of federal law:

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

While a federal district court in Massachusetts recently declared DOMA unconstitutional, that decision is not controlling in Illinois, and is now on appeal.

Second, even if DOMA were declared unconstitutional, a careful reading of the Illinois legislation shows that although parties to a civil union will now have the same rights as "spouses" for purposes of state law, the definition of "spouse" under state law has not changed. Couples in a civil union are not considered "married," and nothing in the law suggests that the legislature intended to change the state's definition of "marriage" or "spouse." To the contrary, that is exactly the political hot-potato that the term "civil union" was intended to avoid. Unfortunately, while this compromise may be useful for politicians, it is likely to lead to confusion among employers and employees about their responsibilities under a variety of federal laws, including the FMLA.

Insights for Employers

  • While courts have not yet weighed in on the issue, the new Illinois civil union law likely does not extend FMLA rights to same-sex couples, or for that matter to opposite-sex couples who opt for a civil union rather than marriage.
  • However, this does not mean that Illinois employers can ignore the law. For example, employers who allow employees to use sick leave to care for a spouse may now be obligated to extend that right to couples in a civil union.  
  • While some employers may choose to simply treat partners in a civil union as "spouses" for purposes of their FMLA policy, the law may not reward this generosity. Leave is either covered by the FMLA or it's not - and if it isn't, you cannot count it against an employee's 12-week FMLA entitlement. If you allow an employee who is party to a civil union to take leave to care for his or her partner, that employee may still have a full 12 weeks of FMLA leave available for another FMLA-qualifying reason. Similarly, the rules limiting the use of FMLA leave when two spouses work for the same employer may not apply to partners in a civil union.