DOL Clarifies Same-Sex Spouse FMLA Rights

The Department of Labor recently revised guidance on its website that clarifies that same-sex spouses may be eligible for Family and Medical Leave Act (FMLA) leave to care for a seriously ill spouse or for activities related to a spouse’s military deployment. Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act now defines spouse as “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 and same-sex marriage.”

On June 26, 2013, the U.S. Supreme Court ruled on the constitutionality of the Defense of Marriage Act (DOMA), striking down the definition of spouse as a “person of the opposite sex who is a husband or wife.” This decision appeared to make FMLA leave available to same-sex couples.

The revision of Fact Sheet #28F clarifies that FMLA leave is now available to same-sex spouses who reside in a state where same-sex marriage is legally recognized. Thus, lawfully married same-sex couples who live in a state that recognizes same-sex marriage will be entitled to up to 12 weeks of leave in a 12-month period to care for a seriously ill spouse or for activities that arise in connection with a military spouses’ deployment, and up to 26 weeks of caregiver leave for a military spouse who is seriously injured or ill, if they are otherwise eligible for FMLA leave.

Employers are not required to make FMLA leave available to same-sex spouses who reside in a state that does not recognize same-sex marriage.

For more information, visit http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf.

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