FMLA to Apply to All Employees in Same-Sex Marriages

When the U.S. Supreme Court declared DOMA unconstitutional in United States v. Windsor, many federal benefits that were previously denied to individuals in same-sex marriages became available to those individuals.  However, job-protected leave under the Family and Medical Leave Act (“FMLA”) was not one of them.

Generally, an employee is able to take 12 weeks of unpaid, job-protected leave to care for a sick family member (including a spouse).  For purposes of FMLA, “spouse” is defined as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides.  This is known as the “state of residence” standard, which means that an employee validly married to a same-sex spouse cannot receive FMLA protections if they live in a state that does not recognize same-sex marriage.

After the Windsor decision, Labor Secretary Thomas E. Perez made some comments indicating that the FMLA definition of spouse would be revised to recognize a “state of celebration” standard.  Consistent with Mr. Perez’s comments, the Department of Labor (“DOL”) issued proposed regulations last week that adopted the “state of celebration” standard.  The DOL has proposed that the definition of “spouse” would be based on the law of the place where the marriage was performed.  This would allow employees to take leave under FMLA to care for a same-sex spouse as long as their marriage is valid where it was performed.  The definition would no longer rely on the employee’s state of residence.

Currently, these regulations are proposed, but they are expected to become final.  The proposed regulations did not specify an effective date, so employers may wish to continue to use the state of residency standard until the proposed regulations become final.  To see a copy of the proposed regulations, click here.