DOL Finalizes FMLA Rule Adopting Place of Celebration Rule for Same Sex Marriages
Written By Jason Rothman
Effective March 27, 2015, the definition of "spouse" for purposes of the Family and Medical Leave Act (FMLA) has been amended to cover all individuals in legal same-sex marriages regardless of where they live.
The FMLA entitles eligible employees of FMLA-covered employers to take unpaid, job-protected leave for specified family and medical reasons (for example, personal illness or caring for an ill family member). Generally speaking, to be eligible for FMLA leave, an employee must:
• Have been employed with a covered employer for at least 12 months,
• Work a minimum number of hours in the 12 months prior to the start of the leave, and
• Work at a location with at least 50 employees within 75 miles.
Under the former FMLA rules, "spouse" was generally defined as a husband or wife as recognized under state law where the employee resided (referred to as the "state of domicile" rule). On June 26, 2013, the U.S. Supreme Court announced its decision in United States v. Windsor stating that Section 3 of the Defense of Marriage Act was unconstitutional. In response, the Department of Labor (DOL) was charged with reviewing its definition of "spouse" under the FMLA to implement the Supreme Court's decision.
Under final rules issued February 27, 2015 and effective March 27, 2015, a "spouse" for purposes of the FMLA includes a "husband or wife." A "husband or wife" refers to "the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into...".
What does this mean? In plain English, the DOL has adopted the "state of celebration" rule. (This is similar to the spouse definition for tax-qualified retirement plans per prior IRS and DOL guidance.) As a result, for the FMLA, an employee may have FMLA rights relating to his/her same-sex spouse if he/she is legally married to the same-sex spouse, regardless of where they live (even if the state they live in does not recognize same sex marriage).
Employers subject to the FMLA will need to provide FMLA rights for employees with same-sex spouses (assuming the employee is eligible for FMLA and the marriage was a legal, state recognized marriage). As a result of this change, employers should review their leave policies and employee communications to make sure they reflect the new FMLA rule.