More employees in same-sex marriages will be able to take leave under the federal Family and Medical Leave Act (FMLA) as a result of a new rule taking effect March 27. And while employers in states that recognize same-sex marriage already have been operating under a definition of spouse that includes legally married same-sex partners, employers in other states will need to change their practices.
The U.S. Department of Labor (DOL) issued a final rule that was published in the Federal Register on February 25 that revises the definition of spouse under the law so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member regardless of whether they live in a state that recognizes same-sex marriage, according to the DOL’s explanation of the new rule.
Before the new rule, the definition of “spouse” applied just to same-sex spouses residing in states that recognize same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into—the “place of celebration.” The new rule moves the FMLA from a “state of residence” rule to the “place of celebration” rule, which allows all legally married couples—whether opposite-sex or same-sex or married under common law—to have federal family leave rights regardless of where they live.
Another major feature of the final rule is that the definition of spouse also includes marriages validly entered into outside of the United States if those marriages legally could have been entered into in at least one state.
David L. Johnson, an attorney with Butler Snow LLP in Nashville, Tennessee, says the new rule “should not come as a surprise given the Obama administration’s broad implementation of United States v. Windsor, which ruled that portions of the Defense of Marriage Act (DOMA) are unconstitutional.”
Although the rule change doesn’t materially alter existing practices in states where same-sex marriages are recognized, it “should have broad repercussions for employers in states that don’t currently recognize same-sex marriages,” Johnson says. When considering FMLA leave requests, employers in those states may choose to “simply take an employee’s word for it” that he or she was lawfully married to a same-sex spouse in another state. But he also advises employers to “conduct due diligence by asking employees for appropriate documentation or other confirmation that they were lawfully married in another state or country.”
A frequently asked questions document from the DOL points out that employers are allowed to require documentation to verify that a marriage is valid. The new rule makes no changes to the regulation permitting employers to require employees to provide reasonable documentation confirming a family relationship, but the DOL points out that “employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”
Michael P. Spellman, an attorney with Sniffen & Spellman, P.A. in Tallahassee, Florida, says employers need to “tread carefully” if they decide to confirm same-sex marriages. “For one thing, under the rule, the employee has the choice of providing a ‘court document’ or just a ‘simple statement.’ On the other hand, if the employer is not consistent, it opens itself up to a claim that it is treating employees in a discriminatory manner and thereby interfering with FMLA rights.”
Spellman recommends that employers use a consistently applied, nondiscriminatory policy of furnishing a particular type of documentation to confirm that a family relationship exists.
Paul J. Sweeney, an attorney with Coughlin & Gerhart, LLP, in Binghamton, New York, reminds employers to review and update their policies and handbooks in light of the new rule. “For those employers who have employees residing in those states that do not currently recognize same-sex marriage, the final rule will likely expand the number of eligible employees covered under the FMLA,” he says. “Given that there will still be many questions about an individual employee’s eligibility under the FMLA, employers should consult with qualified employment law counsel about implementation of the DOL’s final rule.”
The fact sheet explains that the rule change is a result of the 2013 U.S. Supreme Court case United States v. Windsor, which struck down Section 3 of DOMA. That decision meant that the FMLA’s then-current definition of spouse included same-sex spouses residing in a state recognizing same-sex marriage. The new final rule amends the regulatory definition to make it consistent in all states.
The fact sheet points out that the new rule means eligible employees of covered employers will be able to:
- Take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition;
- Take qualifying exigency leave because of their lawfully married same-sex spouse’s covered military service; or
- Take military caregiver leave for their lawfully married same-sex spouse.
The new rule also entitles eligible employees to take FMLA leave to care for their stepchild (the child of an employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met, the DOL’s fact sheet states. Also, the new rule entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.