DOL Changes Stance on FMLA Eligibility and Same-Sex Marriages

Jun 23 2014 - Benefits, FMLA/CFRA - Gail Cecchettini Whaley

On June 20, the Department of Labor (DOL) announced a proposed rule extending the protections of the federal Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages, regardless of where they live.

The DOL is proposing this rule in light of the U.S. Supreme Court’s decision in United States v. Windsor, in which the Court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA allows eligible employees of covered employers to take unpaid, job-protected leave to care for a spouse, son, daughter or parent who has a serious health condition, among other qualifying reasons.

Last year, the DOL issued guidance stating that the term “spouse” for FMLA purposes applied only to same-sex spouses that reside in a state that recognizes same-sex marriage. This is sometimes referred to as the “state of residence” rule.

Now, the DOL proposes to move from a “state of residence” rule to a rule based on where the marriage was entered into; often referred to as a “place of celebration” rule. The proposed rule would change 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 or family member regardless of the state in which the employee resides.

According to the DOL, “under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.”

Several other agencies also use the “place of celebration” rule.

This DOL webpage provides detailed information on the proposed rulemaking, including fact sheets on the proposed revisions.

The proposed rule will be open for public comments once it has been published in the Federal Register.  Check back with the DOL’s dedicated webpage for more information on submitting comments.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

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