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Modern Family Rules: DOL Expands FMLA to Include Same-Sex Couples

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In late February, the U.S. Department of Labor (DOL) published its Final Rule revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA). The revision provides that the term “spouse” means a husband or wife and “refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purpose of marriage in the State in which the marriage was entered into.” In other words, the changes will allow eligible employees in same-sex marriages to take FMLA leave to care for their spouses or family members, regardless of where the employee resides.

This Final Rule follows in the wake of the U.S. Supreme Court’s decision in June, 2013, in United States v. Windsor, 133 S. Ct. 2675, which held that section 3 of the Defense of Marriage Act’s definition of marriage under federal law as the union of a man and woman was unconstitutional. Prior to Windsor, the FMLA regulations on marriage defined the term “spouse” based upon the marriage laws of the state where the employee resides, including both common law and same-sex marriages.. Post-Windsor the regulations require employers to look to the laws of the state where the employee entered into marriage (also called “the place of celebration rule”). In a blog on its website, DOL writes that it has taken the steps to give all couples the “peace of mind that comes with the right to deal with a loved one’s serious medical situation without the threat of job loss.”

Specifically, the new regulation will allow all eligible employees, regardless of where they live, the right to:

  • Take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition;
  • Take a qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service; or
  • Take military caregiver leave for their lawfully married same-sex spouse.

The effective date for the final rule is March 27, 2015.

In response to this final rule, employers should review their employee handbooks and make sure that their FMLA policies reflect the updated definition of spouse and place of celebration rule. If the employer’s company is subject to the minimum standards applied by FMLA, any employee in a management capacity and who are even partially involved in the leave management process should be trained on the new rule.

Note that the new rule does not protect civil unions or domestic partnerships, so employers are advised to determine whether FMLA applies in any particular situation (and certainly the employer is free to expand the definition if it so chooses, but is not required under federal law.)

Employers may also require documentation to verify that the same-sex or common law marriage is valid. Such documentation may include a marriage license or a court document, but also may be “a simple statement asserting that the requisite family relationship exists” (29 C.F.R. §825.122(k)). The key here is to consistently apply the same non-discriminatory policy when asking for documentation.

The DOL’s announcement and the text of the final rule can be found at

Hilary Atkins

Posted In: Legal

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