DOL Proposal Would Extend FMLA Rights to All Same-Sex Spouses

Author: Gloria Ju

June 23, 2014

On June 23, the Department of Labor (DOL) published a proposed rule that would extend Family and Medical Leave Act (FMLA) protections to same-sex married couples regardless of where they live by revising the FMLA's definition of spouse. Currently, FMLA rights are only available to same-sex couples who live in a state that recognizes same-sex marriages - the so-called "state of residence." The proposal replaces this rule with one based on where a marriage was entered into - the "place of celebration" rule. If the proposed rule is finalized, an employer in a state in which same-sex marriage is not legal would nevertheless be required to provide FMLA leave to employees in same-sex marriages legally performed in another state.

The proposed definition of spouse covers same-sex and opposite-sex couples, marriages and common-law marriages, and marriages and common-law marriages entered into abroad (that are valid in the place where entered into and that could have been entered into in at least one state). The rule clarifies that children of an employee's same-sex spouse qualify as stepchildren, and the employee may take FMLA leave to care for them even if the employee does not stand in loco parentis. The same-sex spouse of an employee's parent qualifies as a stepparent for whom the employee may take FMLA leave even if the stepparent never stood in loco parentis to the employee when the employee was a child.

The DOL's proposal comes in light of last year's US Supreme Court United States v. Windsor ruling, which invalidated a section of the Defense of Marriage Act that defined spouse as a person of the opposite sex who is a husband or a wife.

In a June 20 announcement, US Secretary of Labor Thomas E. Perez stated, "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."

Comments on the proposed rule must be submitted by August 22, 2014.