Employees in legal, same-sex marriages, regardless of where they live, will now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act (FMLA) to care for a spouse with a serious health condition. The Wage and Hour Division of the Department of Labor (DOL) announced a rule change to the FMLA in keeping with the U.S. Supreme Court ruling in United States v. Windsor.
That ruling struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law. This ruling brings the interpretation of same-sex marriage into line with the interpretations of other federal agencies.
Enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families will benefit as a result of the rule.
This rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.
This rule comes as no surprise, since the DOL had previously published proposed regulations making this change. The place of celebration rule is much easier for employers to administer, since it means FMLA eligibility will not change when employees move from a state that recognizes same-sex marriages to one that does not, or vice versa.