Department of Labor Amends FMLA to Cover Legally-Married Same-Sex Spouses Nationwide

Posted on March 10th, 2015 by Matthew C. O’Connell

The Family Medical Leave Act allows qualified employees to take unpaid leave in order to care for certain family members, without the fear of losing their job.  At issue is the Department of Labor’s new rule allowing an employee to take up to twelve weeks of unpaid FMLA leave per calendar year to care for the employee’s spouse with a serious health condition.

In the past, same-sex couples did not qualify as “spouses” under the FMLA.  An employee who took time off work to care for their same-sex spouse risked losing their job.  However, beginning March 27, 2015, all that will change.  While the law in a couple’s place of residence once determined their FMLA protections, “spouse” is now defined based upon the law in the “place of celebration,” i.e. where the couple was married.

In 2013, the Supreme Court in United States v. Windsor struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.  In the wake of that decision, President Obama instructed the Cabinet to review other Federal Laws that may be unconstitutional under the Windsor ruling.  Almost immediately, the Department of Labor announced that eligible employees could utilize the FMLA when caring for a same-sex spouse, if the employee resided in a state that recognizes same-sex marriage.  However, same-sex couples who were married in a state that recognizes same-sex marriage, but who are currently residing in a state that does not recognize same-sex marriage, were still unprotected by the FMLA.

On February 25, 2015, the Department of Labor issued a Final Rule revising the regulatory definition of spouse under the FMLA.  The new rule extends FMLA protection to all legally married couples, providing consistent federal family leave rights regardless of their residence or sexual orientation.  Specifically, the regulatory definition of spouse under 29 CFR §§ 825.102 and 825.122(b) now looks to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides.

What does this mean for employers and employees?  With thirty-seven states now recognizing same-sex marriage, many same-sex couples were already covered by FMLA.  So who exactly is being welcomed into the fold? The new rule extends FMLA coverage to employees who 1) work for a covered employer; 2) are legally married in a state that recognizes same-sex marriage; and 3) are residing in one of the thirteen states that does not yet recognize same-sex marriage.

Not sure if you are a covered employer?  Covered employers fall under one of the following three categories:

  1. Private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year;
  2. Public agencies, including a local, state, or federal government agency, regardless of the number of employees it employs; or
  3. Public or private elementary or secondary schools, regardless of the number of employees it employs.

The Final Rule is effective on March 27, 2015.