Same Sex marriageOn February 25, 2015, the Department of Labor (DOL) announced its intention to make a critical modification to the regulations implementing the Family and Medical Leave Act (FMLA) by expanding FMLA rights to employees in legally recognized same-sex marriages regardless of where the employees live.

Previously, the FMLA regulations limited the definition of “spouse” to include only those marriages that were lawfully recognized in the state in which the employee resides.  Therefore, under the old regulatory scheme, an employee in a same-sex relationship who was lawfully married in the Pennsylvania, but who lived and worked in Ohio, could have been denied FMLA leave to care for his spouse with a serious health condition.

The DOL’s new rule changes this regulatory definition of “spouse” to include all marriages that were lawfully recognized in the place where they were performed, regardless of where the couple actually lives. Under the new rule, this same employee who lives and works in Ohio can now take FMLA leave to care for his/her spouse even though Ohio law does not recognize his/her marriage.  The new DOL rule also applies to the FMLA’s military qualifying exigency and caregiver leaves.

The DOL’s regulatory action is in direct response to the Supreme Court’s 2013 decision United States v. Windsor.  In Windsor, the Supreme Court held that Section 3 of the federal Defense of Marriage Act, which defined marriage as between a man and a woman, was unconstitutional.  The DOL implemented the new rule to reduce the administrative burden on employers that operate in more than one state, or that have employees who move between states with different marriage recognition rules. As such, employers will no longer have to consider the laws of the employee’s state of residence in determining the ability of an employee in a same-sex marriage to take FMLA leave.  The new rule will take effect on March 27, 2015.

 

Tips for Employers:

Under the new rule, employers must grant an eligible employee FMLA leave to care for his or her same-sex spouse, provided that the employee was married in a state or country that recognizes same-sex marriage.  Accordingly, employers should examine their policies and confirm:

  1. Whether their employee handbook complies with the spirit and breadth of the new rule;
  2. Whether human resources forms, policies and procedures comport with the new rule;
  3. Whether new procedures should be implemented with respect to the administration of employee benefits; and
  4. Whether supervisors and human resources personnel should receive additional training to assist in the “rolling out” of these new polies and procedures in response to the new rule (note: civil unions are still not considered marriages under the FMLA).

And as always, we recommend that employers consult with legal counsel before implementing any policy changes.