Human Resources News & Insights

Alert: Same sex-spouses now covered under FMLA in all states

HR pros should review their firms’ FMLA policies — as well as any other related materials — ASAP.  

That’s because the DOL just updated the definition of “spouse” for FMLA purposes to reflect the Supreme Court’s ruling in United States. v. Windsor.

As HR pros likely know extremely well at this point, the High Court’s ruling essentially struck down the federal Defense of Marriage Act (DOMA) that limited the definition of marriage for federal purposes as an institution between members of the opposite sex.

Since that ruling, a majority of states have passed legislation of their own to legalize same-sex marriage.

‘Place of celebration’ provision

Now, with the DOL’s rule change, any eligible employee who is in a legal same-sex marriage will be able to take federal FMLA leave to care for his or her spouse regardless of the state in which that employee resides.

In other words, FMLA eligibility is based on the state where the same-sex couple entered into the marriage and not where that couple currently resides.

In the DOL’s press release, the agency referred to the rule change as the “place of celebration” provision under the FMLA.

This is important because, before the change, the definition of “spouse” for FMLA purposes did not include same-sex spouses that currently resided in a state that didn’t recognize same-sex marriage.

So even if an employee entered into a legal same-sex marriage, that employee couldn’t take advantage of FMLA protections to care for his or her spouse unless he or she lived in one of the states that recognized same-sex marriage.

This had been referred to as the “state of residence” rule.

‘Same rights and protections’

In the feds announcement, DOL Secretary of Labor Thomas E. Perez reiterated some of the same talking points he first delivered when he unveiled a proposal to change the rule last summer by stating: “The basic promise of the FMLA is that no one should have to choose between the job and income they need, and care for a loved one.”

Perez went on to say that:

“With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss.”

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