FMLA Regulations Now Cover Same-Sex Spouses

On March 27, 2015, the Department of Labor issued new regulations interpreting the Family and Medical Leave Act (“FMLA”) which now covers same-sex spouses. Under the FMLA, eligible employees of covered employers are entitled to take unpaid, job-protected leave for specified family and medical reasons. A covered employer must provide an eligible employee up to 12 weeks of unpaid leave in a 12 month period for certain specified reasons including leave for take care of a spouse with a serious health condition.

The Department of Labor’s new regulations amend the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take care for their spouse or family member, regardless of where they live. Initially, the Department amended its definition of “spouse” to expressly include “individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.”

In addition, the Department has amended its rule from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA. This rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122 (b) to look to the law of the place where the individual’s marriage was entered into, instead of the law of the state in where the employee resides. This “place of celebration” rule will allow all legally married couples to have the same federal family leave rights regardless of where they live.

The controversy regarding same-sex marriage is still being litigated in the courts which may determine whether the Department of Labor’s new regulations will be permanent. However, in the meantime, covered employers should become familiar with these new regulations regarding the definition of “spouse” under the FMLA.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including leaves under the FMLA, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

 

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