118 Penn Statim 1 (2013-2014)

handle is hein.journals/statim118 and id is 1 raw text is: Windsor in the Workplace: Examining an
Employer's Right to Demand More of Gay
Employees Who Request FMLA Leave
Ryan H. Nelson*
I.   THE PROBLEM WINDSOR CREATED
Imagine your spouse is seriously ill. If you want to take a leave of
absence from work to care for your spouse pursuant to the Family and
Medical Leave Act of 1993 (FMLA),' and your employer exercises its
right to verify that you qualify for FMLA leave,2 the proof you would
need to provide depends on your sexual orientation. Unlike employees
in opposite-sex marriages, employees in same-sex marriages are entitled
to FMLA leave only if they currently reside in a state that recognizes
their marriage. Herein, I examine this dichotomous requirement for gay
employees from the perspective of management; conclude that the
FMLA not only permits, but encourages, employers to demand more of
gay employees; and resolve that the U.S. Department of Labor must
amend the regulations implementing the FMLA to eliminate employers'
* Ryan H. Nelson is an Associate in the Affirmative Action and OFCCP Planning
and Counseling Practice Group of Jackson Lewis LLP. He received his J.D., cum laude,
from the Benjamin N. Cardozo School of Law, Yeshiva University, and his B.S.B.A.
with a major in Economics from the University of Florida.
1. 29 U.S.C.  2601-2654 (2006 & Supp. V 2012).
2. 29 C.F.R.  825.302(c) (2013) (An employee has an obligation to respond to an
employer's questions designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries regarding the leave
request may result in denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.); id.  825.122(k) (an employer may request
documentation to confirm a spousal relationship when an employee requests leave to care
for a covered servicemember).

I

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