On February 25, 2015, the Department of Labor issued a Final Rule revising the regulatory definition of spouse under the Family Medical Leave Act (FMLA). The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights. The Final Rule is effective on March 27, 2015. Click here to review the Fact Sheet.
Historically, and consistent with Section 3 of the Defense of Marriage Act (“DOMA”), the DOL has defined “marriage,” for purposes of interpreting and enforcing the FMLA, as between one male and one female. Further, the DOL would determine whether the marriage of an opposite-sex couple was valid for purposes of the FMLA, based on the laws of the state where the couple resided, not on the “place of celebration.” For example, if an employee resided in a state that did not recognize the employee’s common-law marriage (“celebrated” in a state that recognizes common-law marriages), then the marriage was not valid for the purposes of FMLA-protected leave.
After a 2013 Supreme Court decision in United States v. Windsor, which struck down the definition of marriage found in Section 3 of the DOMA as unconstitutional, the DOL applied the “state of residence” test when determining whether the marriage of a same-sex couple was valid for the purposes of FMLA-protected leave. The FMLA regulations were updated so that eligible employees could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriages. With the new rule, the regulatory definition of spouse under the FMLA is amended, so eligible employees can take FMLA leave to care for a same-sex spouse, regardless of where they live (so long as the jurisdiction in which the marriage was entered into recognizes same-sex marriages).
Essentially, these changes to the FMLA regulations will provide for uniform treatment of same-sex spouses by requiring employers to look at the place of celebration rather than the state of residence when determining eligibility. (This includes same-sex couples married outside the U.S. Same-sex couples married outside the U.S. will be considered spouses if the marriage, (a) was valid in the place of celebration, and (b) would be considered valid in at least one U.S. state.) Likewise, an opposite-sex couple who enters into a legal common-law marriage will retain their FMLA eligibility rights when living in a state that does not recognize common-law marriage.
However, irrespective of these changes, it is important to note that the DOL does not consider a civil union to be a marriage for the purposes of defining a spouse under the FMLA. As a result, employees in civil unions – regardless of whether they are same-sex or opposite-sex couples – remain ineligible for FMLA-protected leave.
Employer Compliance Points
Based on the new definition of a spouse for purposes of FMLA-protected leave, employees, regardless of their state of residence, have the right to:
- Take FMLA-protected leave to care for a lawfully-married same-sex or common-law spouse with a serious health condition;
- Take qualified exigency leave due to their lawfully married same-sex or common-law spouse’s covered military service;
- Take military caregiver leave for their lawfully married same-sex or common-law spouse;
- Take FMLA leave to care for a stepchild that is the child of the employee’s same-sex spouse, regardless of whether the employee provides day-to-day care or financial support for the child; and
- Take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent provided day-to-day care or financial support to the employee as a child.
In addition to the updated FMLA rule, employers should be aware of any local or state laws and regulations which provide greater benefits to the employees. This is also a great time to review and update the FMLA policy in your employee handbook (and maybe all of the policies in your employee handbook if it’s been more than six months since your last update!). That includes leave forms, leave notices, and the FMLA notice on your federal employment poster or bulletin board.
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