Under current law, an eligible employee may take leave under the Family Medical Leave Act (FMLA) to care for a same-sex spouse only if they reside in a state that recognizes same-sex marriage. If the employee lives in a state that does not currently recognize same-sex marriage, however, the employee is not eligible for spousal leave under the FMLA. On June 20, 2014, the Department of Labor (DOL) proposed a new rule which would allow an eligible employee in a same-sex marriage to take FMLA leave to care for a same-sex spouse, regardless of where they live. The DOL explained that the proposed rule “will ensure that the FMLA will now be applied to all families equally, giving spouses in same-sex marriages the same ability as all spouses to fully exercise their rights and responsibilities to their family.” Read on to find out what impact this proposed rule would have on FMLA leave usage.

What is the current law regarding FMLA spousal leave?

The FMLA provides eligible employees with leave to care for a spouse in the following situations:

  • when needed to care for a spouse due to the spouse’s serious health condition;
  • when needed to care for a spouse who is a covered servicemember with a serious illness or injury; and
  • for a qualifying exigency related to the covered military service of a spouse.

The FMLA regulations currently define “spouse” as “a 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 in States where it is recognized.” 29 CFR 825.102, 825.122(a). Because of the Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013), the DOL is no longer prohibited from recognizing same-sex marriages. Accordingly, as of June 26, 2013 (the date of the Windsor decision), eligible employees in a legal same-sex marriage, who reside in a state that recognizes their marriage, are entitled to take FMLA spousal leave. To date, nineteen states and the District of Columbia extend the right to marry to same-sex couples (California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington). As such, eligible employees in legal same-sex marriages in the latter states may take spousal leave under the FMLA. However, because FMLA spousal benefits are governed by the state of the employee’s residence, an employee who is legally married in a state which recognizes same-sex marriage, but subsequently moves to a state which does not recognize the marriage, would not be entitled to seek FMLA spousal benefits. 

What regulatory change is the DOL proposing?

The DOL is proposing to amend the FMLA’s regulatory definition of “spouse” to look to the law of the place in which the marriage was entered into (“place of celebration” rule), as opposed to the law of the state in which the employee resides (“state of residence” rule), and to expressly reference the inclusion of same-sex marriages in addition to common law marriages. The DOL also proposes to include same-sex marriages entered into abroad. (To date, sixteen countries extend the right to marry to same-sex couples: Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, France, Iceland, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden and Uruguay).

In its proposal, the DOL noted that it is appropriate wherever possible to align the availability of FMLA military leave with the availability of other marriage-based benefits provided by the Department of Defense (DOD). The DOL’s proposed “place of celebration” rule is consistent with the DOD’s 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.

What impact would this definitional change have on FMLA leave usage?

The DOL’s proposed rule would also have some impact beyond spousal leave. Specifically, the proposed rule would permit eligible employees to take FMLA leave to care for their stepchild (child of the employee’s same-sex spouse) or stepparent (employee’s parent’s same-sex spouse) without establishing an in loco parentis relationship. Currently, same-sex partners, whether married or not, may take leave to care for a partner’s child provided that they meet the in loco parentis requirement of providing day-to-day care or financial support for the child.

In sum, the proposed definitional change would mean that eligible employees, regardless of where they live, would be able to take:

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

Finally, the DOL believes that the proposed rule will have practical benefits for employers. For example, the proposed rule would reduce the administrative burden on employers that operate in more than one state, because employers would not have to consider the employee’s state of residence and the laws of that state in determining the employee’s eligibility for FMLA leave.

What happens next?

The DOL’s proposed rule is subject to a notice and comment period before it can be implemented. Upon publication of the proposed rule in the Federal Register, interested parties will be invited to submit written comments on the proposed rule at www.regulations.gov. HRLegalist will continue to follow this proposed rule and provide updates.