Texas does not recognize same sex marriage, so the natural thought would be to deny a request for an employee to take FMLA leave to care for his or her same sex “spouse” from a marriage in another state. According to the Department of Labor (“DOL”), such a refusal would be against the law, starting March 27, 2015.
Specifically, DOL issued a final rule last month amending the definition of spouse from a “place of residence” test to a “place of celebration” rule. For Texas, the old rule would mean no same sex spouses under the FMLA for employees who reside in the state. Under the new rule, a Texas employee who flies away to another state for a lawfully recognized same sex wedding, and returns to Texas, has a “spouse” under federal law and is entitled to FMLA leave to care for that spouse, or a stepchild for example.
The big decision for employers going forward will be what level of documentation will be required of employees seeking FMLA leave in such instances. Certainly, the employer would have a right to require documentation of a lawful wedding ceremony (i.e. a marriage certificate from the other state) to confirm that a legitimate relationship exists. Of course, such requests may be perceived negatively, and employers should make sure any requests for documentation are reasonable and not aimed at harassment or interference with an employee’s right to take the federally protected leave. For more information about the rule change, please take a look at the firm’s update on the subject, which can be found here.