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Same-Sex Spouses Could Potentially Be Protected Under the FMLA


The FMLA is a well-known federal law that requires employers to allow its eligible employees to receive 12-weeks of leave time for certain family and medical related reasons. One of the protections afforded under the FMLA is the right to take leave to care for a spouse or child. Traditionally, this protection would only be available for legally married spouses. However, with the definition of spouse evolving, along with gay rights in general, the FMLA does not extend its protection to same-sex couples. The push for a change in the current legislation is under way, which, if successful, would extend that protection.

The current definition of "spouse" under the FMLA

Right now, the regulations that serve to define the terms of the FMLA define spouse as "a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized." Under this existing definition, eligible employees would only be allowed to take FMLA leave to care for a same-sex spouse if they reside in a state that recognizes same-sex marriages. Currently, that would be only 19 states, plus the District of Columbia.

Notice of Proposed Rulemaking to change the definition of "spouse"

The United States Supreme Court issued a decision in June 2013 which found that Section 3 of the Defense of Marriage Act, which generally limited the definitions of "marriage" and "spouse" to opposite-sex marriages and spouses, is unconstitutional. United States v. Windsor. In response, the U.S. Department of Labor (DOL) issued a notice of proposed rulemaking (NPRM), on June 27, 2014. The NPRM announced the DOL's intention to publish a proposed rule revising the definition of "spouse" under the federal FMLA. The DOL proposes changing the definition to recognize same-sex marriages that are legally recognized in the place of celebration, rather than the state where the employee resides. Under the proposed "place of celebration" rule, the employer must provide FMLA leave for all eligible employees in marriages that were valid in the place in which they were entered into, whether those marriages are same-sex, opposite-sex, or common law.

This change would allow employees to have consistent federal family leave rights regardless of where they live. The rule would apply to lawful same-sex marriages performed in foreign countries as well as marriages performed within the United States.

What happens now?

The DOL's notice was published on June 27, 2014 and the deadline for receiving comments on the NPRM was on August 11, 2014. Typically, the DOL takes at least 90 days to respond to comments and then issue a proposed rule. The proposed rule will also have a comment period and a period for response before any final rule is issued. Therefore, a final rule most likely would not be issued and become effective until 2015.

If you have questions or concerns regarding your FMLA rights, or if you have any other questions regarding your employment, please contact Michel | King , either online or by calling us at (205) 265-1880.

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