On Feb. 25, 2015, the Department of Labor (DOL) issued a final rule that expands protections under the federal Family and Medical Leave Act (FMLA) for same-sex spouses. This final rule revises the definition of “spouse” under the FMLA to:
- Adopt a “place of celebration” rule (which is based on where the marriage was entered into), instead of the “state of residence” rule that applied under prior DOL guidance; and
- Expressly include same-sex marriages in addition to common law marriages, and encompass same-sex marriages entered into abroad that could have been entered into in at least one state.
Under the final rule, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouses or family members, regardless of where they live. The DOL’s guidance becomes effective on March 27, 2015. This final rule replaces guidance regarding FMLA protections for same-sex spouses that was issued following the U.S. Supreme Court’s decision in United States v. Windsor. Section 3 of the federal Defense of Marriage Act (DOMA), which barred same-sex couples from being treated as married under federal law. In connection with the final rule, the DOL also issued a set of frequently asked questions (FAQs) to help employers and employees understand the changes to the FMLA’s definition of “spouse.” To comply with the final rule, employers should review and update their FMLA policies and procedures (as necessary). Employers should also train employees who are involved in the leave management process on the expanded eligibility rules for same-sex spouses under the FMLA.
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