Proposed FMLA Rule Incorporates Same-Sex Marriages

July 14, 2014
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The Family and Medical Leave Act (FMLA) is about to get a modern update. The Department of Labor (DOL) recently announced proposed changes to the definition of “spouse,” which are intended to incorporate the U.S. Supreme Court’s ruling in United States v. Windsor which found the Defense of Marriage Act (DOMA) to be unconstitutional.
FMLA Protections
The FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons, including leave to care for a spouse who has a serious health condition. The statute also includes military family leave provisions, which entitle eligible employees to take up to 12 weeks of unpaid, job-protected leave for a “qualifying exigency” related to the foreign deployment of the employee’s spouse and to take up to 26 weeks of leave to care for a spouse with a serious injury or illness incurred in the line of duty.  
The Proposed Changes
While some federal policies and laws specify that spouses are eligible for benefits so long as the marriage was valid in the state where it was celebrated, others depended on whether the couple’s state of residence recognized the legality of the marriage. This inconsistency has caused much confusion in the wake of Windsor, and the Obama Administration is working to revise all relevant federal statutes to reflect the Court’s same-sex marriage decision. The DOL’s proposed FMLA amendment would revise the definition of spouse to look to the law of the place in which the marriage was entered into rather than where the couple resides. Accordingly, eligible employees in legal same-sex marriages will be able to take protected leave to care for their spouse or family member, regardless of where they live. The proposed definition states: Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State. The DOL published its Notice of Proposed Rulemaking on June 27, 2014 and will accept public comments until August 11, 2014. If you have any questions about the proposed FMLA changes or would like to discuss your company’s employee leave policies, please contact me, Gary Young, or the Scarinci Hollenbeck Labor and Employment attorney with whom you work.