FMLA Now Protects Same-Sex Spouses Regardless of Residence

Update leave policies and employee handbooks as necessary

By © McGuireWoods Feb 25, 2015
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Among its many protections, the federal Family and Medical Leave Act (FMLA) affords certain covered workers job-protected leave to care for a spouse who has a serious health condition. Since enactment of the FMLA, the law of the state where the employee resides has controlled eligibility for FMLA spousal leave. Under this regime, an employee who resides in a state where same-sex marriages are not recognized cannot take advantage of the FMLA’s spousal protections.

By final rule published on Feb. 25, 2015 and effective March 27, 2015, the U.S. Department of Labor (DOL) is modifying the definition of “spouse” to include legally recognized same-sex marriages and “common law” marriages regardless of where the worker lives, provided the marriage was legal in the state in which it was originally celebrated. This shift from a “state of residence” rule to a “place of celebration” rule will allow legally married couples to enjoy consistent federal family leave rights even if the state in which they currently reside does not recognize same-sex marriages.

This change in definition follows from the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013). In Windsor, the Supreme Court struck down as unconstitutional the Defense of Marriage Act’s definition of “spouse,” which at that time was limited to a husband or wife of the opposite sex. Following Windsor, the DOL extended the FMLA’s protections to covered employees in same-sex marriages, but only if the employee’s state of residence recognized the marriage. This meant that some employees, such as those who entered into a legal same-sex marriage in one state but moved into or resided in another state that did not recognize the marriage, could not claim (and in some cases lost) the FMLA’s protections. The FMLA’s new definition of “spouse” addresses this situation by looking solely to the place where the marriage occurred to determine eligibility.

Key Employer Take-Aways

Employers should familiarize themselves with the new regulations, keeping in mind the following points:

  • FMLA spousal protection requires the employee to be married. “Domestic partnerships” and “civil unions” do not constitute marriages under the FMLA. Common-law marriages, however, are protected if they are legally recognized in the state in which the marriage occurred. According to the DOL, state-by-state information on common-law marriages is available from several sources, including Nolo.com and usmarriagelaws.com.
  • Same-sex marriages entered into abroad will be entitled to protection if the marriage both (a) is legally valid in the place in which it was celebrated, and (b) could have been entered into legally in at least one state in the United States.
  • The revised law is expected to reduce the administrative burden on employers that operate in more than one state or have employees who move among states with different marriage-recognition rules. Employers will no longer need to consider the employee’s state of residence to determine the employee’s FMLA eligibility. Employers will simply need to know the marriage laws of the states or countries in which the marriages at issue were entered. According to the Department of Labor, this information is available from several sources, including freedomtomarrry.org and gaymarriage.procon.org.
  • The FMLA’s new definition of “spouse” is now consistent with interpretations of that term currently used by the Department of Defense and the Internal Revenue Service.
  • Employers should familiarize themselves with the new regulation and inform HR managers of the change. Employers should also determine how the change will affect benefits across their organizations and update FMLA policies and employee handbooks as necessary for consistency with the new definition. Incorporating this change into upcoming training may also be beneficial.

Additional Resources

In addition, more information about the new regulation can be found on the DOL’s website.

With approximately 900 lawyers and 18 offices worldwide, McGuireWoods serves public, private, government and nonprofit clients. © 2015 McGuireWoods LLP. Republished with permission. All rights reserved. Editor’s Note: This article should not be construed as legal advice.

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