By: Kevin A. Fritz

The Family and Medical Leave Act (“FMLA”) allows employees to take leave from work to care for a family member with a serious health condition.  Last week, the Department of Labor proposed to amend Regulations that implement the FMLA—which would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.

Windsor Past

Around this time last year, in U.S. v. Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act that denied federal benefits to legally married, same-sex couples.  After the Windsor decision, but before last week’s announcement, employees were only eligible to take FMLA leave to care for a same-sex spouse if they also resided in a state in which same-sex marriage is legal.

“Celebration” Future

The DOL has now proposed to eliminate the residency requirement by broadening the definition of “spouse” to recognize legally married individuals under any state law.  The new definition is proposed as:

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.

This definition is consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act.  In practice, if the employee and his same-sex spouse were married in Illinois (a state that recognizes same-sex marriage), but now resides with his same-sex spouse in Indiana (a state that does not), the employee will enjoy FMLA rights to care for his spouse just as if he had resided in Illinois.

The proposed rule allows for eligible employees to take:

  1. FMLA leave to care for their same-sex spouse with a serious health condition
  2. Qualifying exigency leave due to their same sex spouse’s covered military service
  3. Military caregiver leave for their same-sex spouse

Implications

Remember, the FMLA applies to employers with 50 or more employees.  And the regulations are not final yet as the public must first have a chance to provide comment directly to the DOL.  But, once the FMLA Regulations are amended, affected employers should review all FMLA-related policies, procedures, forms, and notices.  Employers should also be aware of obligations under certain state and local laws may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in domestic partnerships or civil unions.

As of posting, same-sex marriage is legal in California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.