Two weeks ago, the Secretary of Labor announced a proposed rule that would extend the benefits and protections of the Family and Medical Leave Act (“FMLA”) to employees in same-sex marriages, regardless of where they live. Currently, only spouses in a same-sex marriage who live in a state that recognizes same-sex marriage are entitled to FMLA leave to care for their spouse. Thus, a same-sex couple who was legally married in Rhode Island (which recognizes same-sex marriage), but who lives in Tennessee (which does not), is not afforded the protections and benefits of the FMLA for leave to care for their spouse. This is often called the “state of residence rule.”
The new definition of “spouse” that the Secretary of Labor proposed last Friday would include spouses in legally recognized same-sex marriages, regardless of where the couple resides. Put another way, as long as the employee seeking FMLA leave to care for his/her spouse is in a marriage that is recognized by the state where he/she was married, that employee may take leave under the FMLA to care for a spouse – assuming all other eligibility requirements are met. This is known as the “place of celebration” rule. By basing eligibility for FMLA protections on the law of the place where the marriage was entered into, all married couples would have consistent federal leave rights, regardless of current residence.
The proposed definition would expressly include same-sex marriages, as well as common-law marriages, and would also encompass same-sex marriages entered into abroad, as long as they could have been entered into in some state. Specifically, the Department of Labor is proposing 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.
In a statement, the Secretary of Labor said that under these 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.” Employers who are covered by the FMLA but operate in states that do not currently recognize same-sex marriage would be well advised to prepare for the adoption of this new definition.
The rule proposal is an outgrowth of the Supreme Court’s decision in United States v. Windsor, which struck down the provision of the Defense of Marriage Act that interpreted “marriage” and “spouse” to be limited to opposite-sex marriages and spouses for purposes of federal law. It is widely expected that the Obama administration will also press Congress to pass the legislation needed to extend other benefits, such as social security benefits, to same-sex married couples as well. You can learn more about the proposed rule here.