FMLA Rights to Be Extended to More Same-Sex Couples Under New Rule

Author: Michael Cardman, XpertHR Legal Editor

February 23, 2015

It's official. Employees will soon have the right to take Family and Medical Leave Act (FMLA) leave to care for their same-sex spouses, regardless of where they live.

Currently, only employees who live in a state that recognizes same-sex marriage are entitled to take FMLA leave to care for their same-sex spouse.

But on February 25, the US Department of Labor (DOL) will finalize a new regulation that will change the definition of spouse so it is based on the law of the state in which an employee entered into marriage, rather than the law of the state in which the employee resides. The new regulation will take effect 30 days later, on March 27.

Many groups representing employers, including the Society for Human Resource Management and the US Chamber of Commerce, have supported this "place-of-celebration" standard. They noted that it is consistent with the policies of several other federal agencies, including the Department of Defense, the Internal Revenue Service and the Department of Homeland Security's Citizenship and Immigration Services. "As employers implement benefit plans and coverage requirements for their employees, consistent definitions are of tremendous importance and value for those seeking to comply with the FMLA," they said in a letter to the DOL that was issued shortly after the change was first proposed last summer.

The definition of spouse will also cover individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state. According to the DOL, 18 countries currently recognize same-sex marriage: Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, Finland, France, Iceland, Luxembourg, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden and Uruguay.

Some groups had asked the DOL for guidance on how to determine if a same-sex marriage is legally valid. They requested a chart on the agency's website with current information on the status of same-sex marriage in various jurisdictions. But the DOL rejected this request, saying, "making this determination will not be burdensome."

The DOL also rejected requests from employer groups to "clarify what documents constitute proof of marriage, when those documents may be requested, and to also provide examples illustrating appropriate application of the rules."

The DOL said that an existing regulation -- which allows an employer to require employees who take leave to care for a family member to provide reasonable documentation of the family relationship -- "adequately addresses" their concerns.