On June 20, 2014, the U.S. Department of Labor’s Wage and Hour Division announced plans to revise the regulations interpreting the Family and Medical Leave Act (“FMLA”) to give greater recognition to same-sex marriages for FMLA leave purposes. The current FMLA regulations look to the laws of the state where an employee resides to determine whether the employee is married and therefore eligible to take leave to care for a spouse with a serious health condition. Thus, an employee who entered into a same-sex marriage in a state that recognizes such unions currently is not eligible for FMLA leave to care for his or her spouse if the employee resides in a state that does not recognize the marriage. Under the proposed regulatory changes, an employee’s spousal FMLA rights would be determined by applying the marriage laws of the state where the marriage took place, regardless of the employee’s state of residence. Thus, all marriages that were legally recognized in the state where they were entered into would be treated the same for FMLA purposes, regardless of whether the marriage is same-sex or opposite sex and whether the marriage is a common-law marriage or one entered into pursuant to a license and a marriage ceremony. The proposed changes would also entitle an eligible employee in a legally recognized same-sex marriage to take FMLA leave to care for a stepchild with a serious health condition, even though the employee does not exercise parental authority over the stepchild, and would allow any eligible employee to take FMLA leave to care for a stepparent in a legally recognized same-sex marriage to one of the employee’s parents.
The proposed changes to the FMLA regulations have not yet been published in the Federal Register. Once published, interested persons will have forty-five days to submit comments to the Wage and Hour Division. The agency will take these comments into consideration in formulating a final regulation on these issues.