The Department of Labor announced
today a proposed rule that would allow an employee to take FMLA leave 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. For example, if the employee was
married in New York, but now resides with his same-sex spouse in Indiana, the
employee will enjoy FMLA rights to care for his spouse as if he had resided in
New York.
DOL’s Interpretation of FMLA after U.S. v.
Windsor
As we know, the FMLA allows employees to take leave from work to care for a
family member with a serious health condition. Before U.S. v.
Windsor abolished certain portions of the Defense of Marriage Act (DOMA),
same-sex couples were not allowed to take FMLA leave to care for a same-sex
spouse, since DOMA did not recognize the relationship. After
the Windsor decision but before today’s announcement,
employees were eligible to take FMLA leave to care for a same-sex
spouse only if they have resided in a state in which same-sex
marriage is legal.
According to the DOL’s
notification today, the proposed new FMLA regulation includes the following
highlights:
The Department is proposing to move from a “state of residence” rule to a
rule based on where the marriage was entered into (sometimes referred to as
“place of celebration”).
The proposed definition of spouse expressly references the inclusion of
same-sex marriages in addition to common law marriages, and will encompass
same-sex marriages entered into abroad that could have been entered into in at
least one State.
The Department proposes to define spouse as follows:
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
for purposes of marriage in the State in which the marriage was entered into
or, in the case of a marriage entered into outside of any State, if the
marriage is valid in the place where entered into and could have been
entered into in at least one State. 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
Take military caregiver leave for their same-sex spouse
DOL secretary Thomas Perez announced
the proposed changes this morning in a press release, stating, ”The
basic promise of the FMLA is that no one should have to choose between
succeeding at work and being a loving family caregiver . . . Under the proposed
revisions, the FMLA will be applied to all families equally, enabling
individuals in same-sex marriages to fully exercise their rights and fulfill
their responsibilities to their families.”
The Notice is Not Unexpected
It was only a matter of time before this regulatory announcement became
reality. In fact, the DOL foreshadowed the move when it issued Technical
Release 2013-04 in September 2013, at which time the agency took the
position that — at least with respect to employee benefit plans — the terms
“spouse” and “marriage” in Title I of ERISA and its implementing regulations
“should be read to include same-sex couples legally married in any state or
foreign jurisdiction that recognizes such marriages, regardless of where they
currently live.”
Today, the Obama Administration also is expected to issue the findings of its
year-long review of how the Windsor decision impacts other federal
benefits. It is anticipated that same-sex married couples will enjoy the
same federal benefits and obligations as other married couples, regardless of
where they live.
Next Steps
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.
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. As
the rule comes into effect, let’s not forget about the application of state law.
In some states, employees who are in a same-sex marriages or in a domestic
partner relationship already may enjoy certain leave protections under the
law.