FMLA Rights Expanded to Same-Sex Couples

The United States Department of Labor issued a Final Rule in February, revising the definition of a "spouse" under the Family and Medical Leave Act ("FMLA"), which extended the FMLA's protections to married, same-sex couples. The rule is designed to implement changes required as a result of the United States Supreme Court decision in United States v. Windsor. In that case, the court struck down the Federal Defense of Marriage Act provision which restricted the definitions of "marriage" and "spouse" to opposite-sex marriages for purposes of federal law.

The new regulation allows legally married couples, opposite-sex and same-sex, to enjoy the rights provided by the FMLA regardless of the laws in the state in which the employee currently resides. Accordingly, as long as the employee is legally married in a location that allows for same-sex or common law marriages, the employee is married for purposes of the FMLA, even if the state in which the employee resides does not recognize same-sex marriages. The Final Rule also includes those employees in lawfully recognized same-sex and common law marriages which were entered into outside of the United States, as long as they could have been entered into in at least one state. The FMLA still does not apply to civil unions or domestic partnerships.

The Rule will become effective on March 27, 2015. Employers will therefore want to update their FMLA policies or at least notify decision-makers regarding this change. The new regulations will not only impact a spouse's right to take care of his/her spouse, but a spouse's right to take care of a child or "stepchild."

Employers may request reasonable documentation of the marriage, which can be a statement from the employee or documentation from a court, but any such request should not interfere with an employee's exercise of his or her FMLA rights. Generally, employers will already have such information in the personnel file along with an employee's emergency contact, healthcare benefits or beneficiaries issues with respect to employee benefit plans. Employers should, however, be consistent in requesting documentation for same-sex and opposite-sex marriages.

WHAT EMPLOYERS SHOULD DO NOW:

  • Revise FMLA policies and FMLA forms to reflect that leave for legal, same-sex spouses is covered under the FMLA.
  • Ensure those administering FMLA leave are aware of and understand the change in the law.
  • Understand how the new definition may impact other benefit plans related to FMLA leave.