The Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the details:

Where We Were

The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered.  This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.

After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.

Where We Are Now

After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.

In the age of social media, the DOL secretary, Thomas Perez made the agency’s announcement through its own blog post.  That’s kinda neat, so says this FMLA nerd.

A copy of the DOL’s final rule and comments to the final rule can be accessed here (pdf).  A copy of the DOL’s fact sheet on the final rule can be accessed here.

What Does This Mean for Employers?

All well and good, Jeff.  Of course, I know all of this.  Tell me how this new rule impacts my life.  

Here’s what employers need to know and do:

1.  As an initial matter, determine whether the FMLA applies to you.  If so, you should:

  • Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
  • Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
  • Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

2.  Whether or not FMLA applies to you, you should determine whether any state leave law applies to you.  These laws may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

3.  Keep in mind two particular FAQs on This New DOL Rule (which I have taken, in part, from of the DOL Final Rule FAQs):

Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)

Here’s the catch, employers: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation.  On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” (My emphasis) It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner.  Yet, on the other hand, the DOL is quick to point 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.”

Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists?  In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights. I leave that compliance piece carefully in your hands, but I encourage you to tread carefully.

One thing is clear:  If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”  So, employers, no second bites at the apple if you already have this information!

Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?

A.  No.  In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.