The Department of Labor announced today a proposed rule that would 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.  As expected, the DOL has adopted a “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.  For example, if the employee was married in New York, but now resides with his same-sex spouse in Indiana, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York.

DOL’s Interpretation of FMLA after U.S. v. Windsor

As we know, the FMLA allows employees to take leave from work to care for a family member with a serious health condition.  Before U.S. v. Windsor abolished certain portions of the Defense of Marriage Act (DOMA), same-sex couples were not allowed to take FMLA leave to care for a same-sex spouse, since DOMA did not recognize the relationship. After the Windsor decision but before today’s announcement, employees were eligible to take FMLA leave to care for a same-sex spouse only if they have resided in a state in which same-sex marriage is legal.

According to the DOL’s notification today, the proposed new FMLA regulation includes the following highlights:

  • The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).
  • The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
  • The Department proposes to define spouse as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, 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 or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

The proposed rule would mean that eligible employees, regardless of where they live, would be able to:

  • Take FMLA leave to care for their same-sex spouse with a serious health condition
  • Take qualifying exigency leave due to their same sex spouse’s covered military service
  • Take military caregiver leave for their same-sex spouse

Access the DOL’s Notice of Proposed Rule Making here (pdf).  The DOL fact sheet also can be accessed here and frequently asked questions can be accessed here.

DOL secretary Thomas Perez announced the proposed changes this morning in a press release, stating, ”The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver . . . Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

The Notice is Not Unexpected

It was only a matter of time before this regulatory announcement became reality.  In fact, the DOL foreshadowed the move when it issued Technical Release 2013-04 in September 2013, at which time the agency took the position that — at least with respect to employee benefit plans — the terms “spouse” and “marriage” in Title I of ERISA and its implementing regulations “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.”

Today, the Obama Administration also is expected to issue the findings of its year-long review of how theWindsor decision impacts other federal benefits.  It is anticipated that same-sex married couples will enjoy the same federal benefits and obligations as other married couples, regardless of where they live.

Next Steps

As with other proposed regulatory changes, the public will be given the chance to provide comment directly to the DOL on the proposed change before the agency issues a final rule on the issue.

After the final rule is adopted, employers should review and amend their FMLA policy and procedures, as well as all FMLA-related forms and notices.  As the rule comes into effect, let’s not forget about the application of state law.  In some states, employees who are in a same-sex marriages or in a domestic partner relationship already may enjoy certain leave protections under the law.