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FMG Law Blog Line

Archive for September, 2013

FMLA Leave Must Now Be Made Available to Employees with Same-Sex Spouses

Posted on: September 6th, 2013


By David Cole

The sweeping effects of the Supreme Court’s decision in U.S. v. Windsor, in which it struck down the Defense of Marriage Act (“DOMA”) as unconstitutional, are coming into greater focus.  Many employers may already be aware of the implications to their employee benefits plans and immigration benefits.

In addition, the Department of Labor has updated its FMLA Fact Sheet #28F to specifically provide that the word “spouse” in the FMLA now includes same-sex spouses in states where same-sex marriages are legal.  In other words, in states where same-sex marriage is legal, employers must now provide FMLA leave to employees who need to care for a same-sex spouse who has a serious health condition or to care for a covered service member who is a same-sex spouse.  Employers should immediately review their policies and make any necessary changes.

It is important to note, however, that the FMLA still does not require for leave to care for a domestic or civil union partner.  This is because the statutory language of the FMLA uses the word “spouse,” which only covers employees in a marriage (both opposite-sex and same-sex), but not employees in a domestic or civil union.   Of course, employers can choose to voluntarily provide leave to employees who want to care for a domestic or civil union partner, but they cannot count that time against the employee’s FMLA leave entitlement.

How Far Is Too Far When It Comes To Invasive Searches Of The Body?

Posted on: September 4th, 2013

By: Ali Sabzevari

A man in Tennessee was arrested for possession of 0.06 grams of marijuana.  In custody, police suspected the man of concealing contraband inside of his body due to his constant fidgeting and attempts “to put his hands in the back of his pants.”  He was taken to a hospital where, without his consent, a doctor medically paralyzed and intubated the man to prevent him from contracting his muscles.  Once the man was completely paralyzed, the doctor performed a rectal examination and retrieved more than five grams of cocaine.  The man was convicted and sentenced to five years in prison.

On appeal, the Sixth Circuit in U.S. v. Booker determined that the unconsented search/procedure violated the man’s Fourth Amendment rights because it was “so unreasonable as to shock the conscience.”   Although officers may not force a suspect to have a rectal examination, the Sixth Circuit mentioned a lesser intrusive alternative for retrieval, such as having an x-ray performed and if further medical examination at that point was necessary, engaging in a monitored bowel movement or obtaining a court order to engage in a body cavity search.

Is this a case of overly-zealous police officers or overly-protective judges?