Proposed rule would extend FMLA protection to employees in same-sex marriages

by Tammy Binford

On June 20, the U.S. Department of Labor (DOL) announced a proposed rule that would allow employees to take Family and Medical Leave Act (FMLA) leave to care for a same-sex spouse even if the couple lives in a state that doesn’t recognize same-sex marriages.

The proposed rule is another result of the U.S. Supreme Court’s decision in United States v. Windsor. The Court struck down the provision of the Defense of Marriage Act (DOMA) that interpreted “marriage” and “spouse” to be limited to opposite-sex marriages for the purposes of federal law.

The proposed rule would change the FMLA’s regulatory definition of “spouse” so that eligible employees in legal same-sex marriages would be able to take FMLA leave to care for a spouse or family member regardless of the state in which they reside. The current definition of “spouse” applies to same-sex spouses who reside in a state that recognizes same-sex marriage.

Interested parties are encouraged to submit comments at The regulation identification number is 1235-AA09. Comments must be received within 45 days after the proposed rule is published in the Federal Register.

The version of the proposed rule that appears in the Federal Register may contain slight differences from the version approved by the Office of Management and Budget. That version is available here.

The DOL has prepared a fact sheet on the proposed rule. The fact sheet spells out the major features of the rule as well as the expected impact on FMLA leave. The fact sheet explains that the proposed definition of “spouse” expressly includes same-sex marriages as well as common-law marriages. It also encompasses same-sex marriages that were entered into abroad and would be legal in at least one state.

The fact sheet explains that employees who meet eligibility requirements and work for employers that are covered by the FMLA will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, take qualifying exigency leave because of a same-sex spouse’s covered military service, and take military caregiver leave to care for a same-sex spouse.

Under the FMLA’s “qualifying exigency leave” provision, eligible employees can take up to 12 weeks of unpaid leave during a 12-month period because of a qualifying exigency associated with the foreign deployment of a spouse, child, or parent. The FMLA’s military caregiver component entitles eligible employees who are the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness incurred in the line of duty to take up to 26 weeks of unpaid leave during a 12-month period to care for the servicemember.

The proposed rule means that eligible employees would be able to care for a stepchild even if the in loco parentis (in place of a parent) requirement of providing day-to-day care or financial support for the child is not met. Also, the proposed change would allow eligible employees to take FMLA leave to care for a stepparent even if the stepparent never stood in loco parentis to the employee.