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Update leave policies and employee handbooks as necessary
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.
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:
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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