Eligible Employees In Same-Sex Marriages Would Get FMLA Protections Under Proposed Rule

The Department of Labor (DOL) has issued a proposed rule extending the protections of the FMLA to all eligible employees in legal same-sex marriages regardless of where they live. The proposal is in light of the Supreme Court’s decision in United States v. Windsor in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

Definition of spouse. The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.

Common law marriages, civil unions. The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one state. Note that civil unions are not considered marriages under the FMLA. Eligible employees in same-sex civil unions, as well as opposite-sex civil unions, could still take FMLA leave for their own serious health condition, or to care for their child or parent, but they would not be eligible to take spousal leave, since a civil union is not considered a legal marriage.

Spousal leave situations. The proposed rule would provide eligible employees the opportunity to take FMLA leave to care for their same-sex spouse, regardless of where they live, in these situations:

  • caring for their same-sex spouse with a serious health condition;
  • taking qualifying exigency leave due to their same-sex spouse’s covered military service; or
  • taking military caregiver leave for their same-sex spouse.

With respect to the FMLA’s military family leave provisions, the proposed place of celebration rule is consistent with the Department of Defense’s (DOD) policy of treating all married members of the military equally. In administering its policy, the DOD looks to the place of celebration to determine if a military member is in a valid marriage. The DOL believes it is appropriate wherever possible to align the availability of FMLA military leave with the availability of other marriage-based benefits provided by the DOD.

The proposed change also would entitle eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met. In addition, the proposed change would entitle eligible employees to take FMLA leave to care for their stepparent (same-sex spouse of the employee’s parent), even though the stepparent never stood in loco parentis to the employee.

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