Proposed changes to the regulations of the Family Medical Leave Act (“FMLA”) may require employers nationwide to extend spousal leave benefits to all eligible employees in valid same-sex and common law marriages regardless of whether the state law recognizes the marriage.
In light of the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down Section 3 the Defense of Marriage Act, the U.S. Department of Labor (“DOL”) announced last week that it is no longer prohibited from offering spousal leave benefits under the FMLA to individuals in same sex marriages, and has proposed to redefine the term “spouse” under the FMLA to include partners in same-sex and common law marriages.
The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave for family and medical reasons. One provision of the FMLA extends leave benefits to employees who need to care for a spouse with a serious health condition. Since the FMLA applies state law to define whether an individual is a spouse, state law on same sex marriages determines whether an employee may take FMLA leave to care for a same sex partner.
The DOL is taking it one step further, in the Notice of Proposed Rulemaking (“NPRM”), the term spouse is re-defined to include individuals in same-sex and common law marriages regardless of whether the state law currently allows same-sex or common law marriage. This proposal would establish uniformity across the United States, according to the DOL, by focusing on the “place of celebration” to determine eligibility for spousal leave benefits. By using the “place of celebration,” an employee’s partner would meet the definition of a spouse if the state where the couple entered into marriage recognized that marriage as valid. Then, for the purposes of the FMLA, the employee’s partner would qualify as a spouse in all 50 states.
Bottom Line
While the proposed definition would apply to all states, the effect of any changes would be less pronounced in states like Minnesota which already recognize same-sex marriage. Since FMLA’s spousal leave benefits are currently tied to state law, employers in states with recognized same-sex marriages are already providing spousal benefits to same sex couples. If the DOL’s proposed definition is adopted, however, employers in the 31 states that currently do not allow same sex marriage would be required to allow married employees to use spousal leave benefits to care for a same sex partner.
The proposed definition of spouse under the FMLA has only just begun to work its way through the rule-making maze, so employers do not need take any action yet. We will continue to monitor this proposed change and provide updates as they become available.