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The AR Group

Extending FMLA Leave Rights for Same-Sex Couples

The Department of Labor (?DOL?) recently announced a proposed rule that would allow an employee to take leave under the Family Leave Medical Act (?FMLA?) to care for a same-sex spouse,?regardless of whether the employee lives in a state that recognizes their marital status. As expected, the DOL has adopted a ?state of celebration? rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married.

Under the FMLA employees may take leave from work to care for a family member with a serious health condition. ?Prior to the U.S. v. Windsor decision that abolished certain portions of the Defense of Marriage Act (DOMA), same-sex couples could not take FMLA leave to care for a same-sex spouse. After the?Windsor?decision, but before the recent DOL announcement, employees?were eligible to take FMLA leave to care for a same-sex spouse only?if they resided in a state in which same-sex marriage is legal.

Under the proposed FMLA regulation, the DOL proposes:

To move from a ?state of residence? rule to a rule based on where the marriage was entered into (i.e. ?place of celebration?).

A definition of spouse that expressly references the inclusion of same-sex marriages, in addition to common law marriages, and encompass same-sex marriages entered into abroad that could have been entered into in at least one State.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage, as defined or recognized under State law in the State in which the marriage was entered into. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into, and could have been entered into in at least one State.

The proposed rule would mean that eligible employees, regardless of where they live, would be able to:

Take FMLA leave to care for their same-sex spouse with a serious health condition;

Take qualifying exigency leave due to their same sex spouse?s covered military service; and

Take military caregiver leave for their same-sex spouse.

As with other proposed regulatory changes, the public will be given the chance to provide comment directly to the DOL on the proposed change?before the agency issues a final rule on the issue.

SMART TIP: After the final rule is adopted, employers should review and amend their FMLA policy and procedures, as well as all FMLA-related forms and notices.