FMLA: The Marriage Penalty

When I first came into government the then US Civil Service Commission had an FPM Advisory Group to offer assistance and guidance to any human resources practitioner.  One of their senior people was a woman named Essie Drake.  Essie was one of their resident historians and experts, and I think her first job was a waitress at the last supper.

Woe be the individual who called her for advice and had not read all there was on the subject first because she would not give you an easy and quick answer.  This was her boot camp where she wanted the caller to get used to doing their due diligence first, and then she would be happy to assist if the caller still needed advice.  She had a hard drive for a memory and if you called her back, she would say oh yes you are so-and-so and name your agency.  She could be more than just a little intimidating, but she was a font of knowledge.

That service went the same way as the Federal Personnel Management Manual, and today you are lucky if you can reach a warm body at OPM for advice, and you are even luckier still if that person has the depth of field to provide the necessary advice.

Congress enacted the Family and Medical Leave Act (FMLA) in 1993 to allow employees the time to balance their career requirements, and to attend to their own serious health issues or the serious health issues of their immediate family member if necessary.  This legislation was first contemplated a decade before, and it was twice vetoed by George H.W. Bush.  Perhaps President Bush foresaw that this legislation was going to unleash a quagmire of compliance issues for employers and employees alike.  More than twenty years after its passage the administration of its requirements are still controversial and confusing.

Then in November 2008, compliance became more complicated when Congress amended the act granted protected leave to military families under certain conditions.  Since then, the administration of FMLA has been a work in progress as the U.S. Department of Labor for Title I employees, and the U.S. Office of Personnel Management for Title II employees has attempted to clarify some of the more confusing compliance issues for employers.  FMLA is not an anti-discrimination law, it is an entitlement law.  At first glance FMLA’s requirements do not appear to be so difficult, yet no two issues in the workplace are ever the same.  And, as with any social legislation, so much of its requirements are defined by evolving case law.

The enabling regulations for FMLA treat private industry and some quasi-government agencies differently than the enabling regulations for federal agencies. While the overall regulations for both are quite similar, there are some subtle differences. These differences require the practitioners and managers to be steered to the appropriate sections of the code of federal regulations to ensure they are receiving the accurate guidance.  Title I coverage applies to certain limited federal employees, including:

  • Individuals employed on a temporary appointment of one year or less.
  • Individuals employed on an intermittent appointment.
  • Employees of the U.S. Postal Service and the Postal Rate Commission.
  • Employees of the government of the District of Columbia.
  • Title I covers employees of the U.S. Postal Service and the Postal Rate Commission. These employees are governed by Department of Labor regulations found in 29 CFR § 2601 and Part 825.  Other specific employees, including non-appropriated fund employees of the Department of Defense and the Coast Guard, DOD teachers, and Veterans Health Administration employees appointed under Title 38, are covered under regulations promulgated by their agencies, which mirror the DOL Title I regulations.

Title II coverage applies to the majority of the federal agencies and employees not mentioned above. FMLA for federal employees falls under Title II of the Act and is governed by the Office of Personnel Management (OPM) Regulations found in 5 CFR § 630.1201. It is not clear why Congress set up separate administration of FMLA for federal employees, and a side-by-side comparison of the two Titles reveals that coverage is not the same.  This is where the fun begins.  Nevertheless, it is important that a FMLA administrator understand both titles.

Most federal employers concurrently have employees covered by the above two FMLA titles. Although similar, these two FMLA titles are not identical, which demands that the practitioner know which variant they are working under.  Two excellent resources on this entitlement is Carl Bosland’s “FMLA Basics – A Federal Supervisor’s Guide to the Family and Medical Leave Act” and LRP’s “Federal Sector FMLA: Answers to Frequently Asked Questions” authored by Barbara Haga.

Congress inserted a marriage penalty applicable to Title I employees designed to protect small business.  FMLA regulation 29 C.F.R. § 825.120 gives employers of married co-workers a special exception (or, perhaps a “penalty” to the married co-workers):

A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as a husband and wife are employed by the “same employer.”

A person might legitimately ask that if the marriage penalty was intended to protect small business from having both a husband and wife of leave at the same time for FMLA reasons, then why is it applicable to the largest employer in the world.  This is a very legitimate question, but the above referenced penalty still exists for Title I employees in federal service.  Well certainly then it must apply equally to Title II civil servants as well.  “Alas poor Yorick” is probably one of Shakespeare’s most fondly remembered lines from Hamlet, and yet one of the most misquoted and misapplied.  Whereas the marriage penalty does apply to Title I employees, the regulations for Title II employees is silent, and OPM has done nothing to correct this anomaly.  So, poor Yorick does not know him well.

Two experts, Barbara Haga and Carl Bosland believe the silence betokens consent whereas the marriage penalty does not apply to Title II employees, and a husband and wife working for the same employer enjoy the maximum benefits each without limitation.  I hold the opposite opinion based upon a response from Helen Applewhaite, DOL’s Wage and Hour Branch Chief who opined that:

“Most federal employees are covered under Title II of the FMLA and subject to regulations issued by OPM.  As we discussed, Title II of the FMLA requires that OPM prescribe regulations for the administration of title II that “shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of labor to carry out title I” of the Act.  For federal employees covered under its provisions, title II amends Chapter 63 of title 5, and the statutory cite for the requirement to follow DOL regulations can be found specifically at § 6387.”

Carl Bosland responded this way:

“Anyway, the Title I marriage penalty makes little sense to me as applied to the Federal Sector as it was originally enacted to protect small employers, not the largest employer in the country.  Nor does it strike me as particularly fair that the marriage penalty does not apply to Title II federal employees, but does apply to Title I federal employees.  Nor does it make sense to me that it applies to some forms of Title I FMLA leave but not others.

Finally, I see no reason why the federal government should penalize the institution of marriage at all by depriving married couples of the full FLMA benefits enjoyed by all Title II covered federal employees, and that would be enjoyed by the same couple under Title I if they were not married but living together for 25 years and, for all intents and purposes, might as well be married.  Of course, you are free to disagree.”

I do not have a clue who is right, and it may take case law to decide or for OPM to definitively promulgate guidance that it has not yet seen fit to do.  However, having spent more than 25 years of my career with a cost accounting and auditing agency, I am persuaded that federal agencies need to do more to operate in a cost effective way and to improve productivity. For these reasons I believe the marriage penalty does apply to Title II employees as well.

Now, it is summer and I wish I were enjoying the beach on Cape Cod, along with Ernie Hadley, but last week’s decision on DOMA will again result in the attorneys’ full employment act.

The U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act, which had established a federal definition of marriage as a legal union only between one man and one woman.  And, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, we can only assume imagine that his mind was preoccupied  by the manner in which the extinction of DOMA would impact the future of FMLA.

We know that FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

“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.  29 C.F.R. 825.102

The SCOTUS decision will even send DOL back to the drawing board as in its 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” was only to be a person of the opposite sex.  Until last week FMLA privileges have not applied to same sex spouses.   With the downfall of DOMA, the Supreme Court has left it open for each state to decide its own definition of “spouse.”  Thus, until DOL revises its 29 CFR 825 regulations, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What is unclear about FMLA given the Supreme Court decision is what if an employee lives in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?  Presently, there are slightly more than 30 states that do not recognize same-sex marriage.  What is clear is that agencies are going to need help from both DOL and OPM, and they are going to need it quickly to avoid confusion and misapplication of the FMLA entitlement.

Essie Drake, please come back, we need you.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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