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March 11, 2015 Practice Points

Department of Labor Expands FMLA Coverage for Same-Sex Spouses

Same-sex spousal rights, particularly in the area of employment law, are in a state of flux.

By Jennifer R. Phillips

Same-sex spousal rights, particularly in the area of employment law, are in a state of flux. This conundrum will hopefully be resolved later this year when the U.S. Supreme Court issues a ruling on a collection of four cases concerning the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.

In the meantime, the U.S. Department of Labor (DOL) took action of its own, announcing a final rule to revise the definition of spouse under the federal Family and Medical Leave Act (FMLA) in light of the Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The final rule amends the definition of “spouse” under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouses or family members, regardless of where they currently live or work.  

As proposed under the final rule, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. For example, if a business is located in Ohio and the business’s employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, the Ohio business would be required to grant the employee in the same-sex marriage the same FMLA benefits as it would to any other “spouse.”

The DOL’s final rule takes effect March 27, 2015, which means that businesses have only a few weeks to update their FMLA policies and practices for this important change by, for example:

  • Training human resources personnel and supervisors on the new FMLA definition of “spouse.”
  • Reviewing and amending the company’s written FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new final rule.
  • Remembering that the FMLA does not protect civil unions or domestic partnerships, so employers are advised to determine whether FMLA applies in any particular situation. That said, employers are free to provide greater rights than those required under the FMLA.

If the Supreme Court rules later this year that all states must recognize valid same-sex marriages entered into in other states, then the necessity of this DOL regulatory change is short-lived. Nevertheless, until then, employers are cautioned to remember that the new meaning of “spouse” under the FMLA depends on the law of the state in which the employee’s marriage was celebrated, not the law of the state where the employee lives or works.

Each case is different, and companies should never assume that all such situations require identical responses.

Jennifer R. Phillips, Snell & Wilmer, Phoenix, AZ

Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).