FMLA Leave Would Cover Same-Sex Couples Who Are Married No Matter Where They Live

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By Gayle Cinquegrani  

June 20 — The protections of the Family and Medical Leave Act would be extended to all eligible employees in legal same-sex marriages regardless of where they live under a proposed rule announced June 20 by the Labor Department's Wage and Hour Division.

In United States v. Windsor, 133 S. Ct. 2675, 118 FEP Cases 1417 (2013), the U.S. Supreme Court struck down the provisions of the Defense of Marriage Act that denied federal benefits to legally married, same-sex couples.

The proposed rule would revise the FMLA's definition of “spouse” in light of Windsor so that eligible employees in legal same-sex marriages would be able to take FMLA leave to care for their spouse or family member even if the state where they live does not recognize same-sex marriages.

The test for FMLA applicability would switch from a “state of residence” rule to a “place of celebration” rule, the DOL explained in a fact sheet.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” Labor Secretary Thomas Perez said in a June 20 statement. “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,” Perez said.

Place of Celebration

Under current FMLA regulations, married same-sex couples can be considered spouses only if they reside in a state that recognizes same-sex marriage. The proposed rule would change the definition of “spouse” in 29 CFR §§ 825.102 and §§ 825.122(b) to look to the law of the place in which the marriage was performed, known as the “place of celebration.”

The proposed rule would make federal family leave rights consistent throughout the nation for all legally married couples, whether opposite-sex or same-sex, the DOL said.

The proposed definitional change 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 because of their same-sex spouse's covered military service, or take military caregiver leave for their same-sex spouse, the DOL said in the fact sheet.

In addition, the proposed change would entitle eligible employees to take FMLA leave to care for their stepchild (the child of the employee's same-sex spouse) even if the employee does not meet the in loco parentis requirement of providing day-to-day care or financial support for the child, according to the fact sheet. The proposed change also would entitle eligible employees to take FMLA leave to care for their stepparent (the employee's parent's same-sex spouse) even if the stepparent never stood in loco parentis to the employee.

The FMLA permits workers to take up to 12 weeks of job-protected, unpaid leave in a 12-month period to bond with a new child, care for a family member with a serious health condition or take care of their own serious illness.

“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,” Labor Secretary Perez said.

The FMLA's military caregiver provisions allow up to 26 weeks of unpaid, job-protected leave during a 12-month period so a worker can care for a family member who was seriously injured in the line of duty, and up to 12 weeks of unpaid, job-protected leave in a 12-month period when an employee's spouse, son, daughter, or parent is deployed overseas.

The FMLA applies to workplaces with at least 50 employees. To qualify, an employee must have been with the same employer for at least one year and have worked at least 1,250 hours during the past year.

‘Welcome Step.'

Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, said in a June 20 statement: “For more than 21 years, the Family and Medical Leave Act has made a significant impact on the lives of millions by enshrining in law the protection that Americans can tend to their family without losing their job. With today's proposed change, the Obama Administration is rightly affording to same sex couples the same rights.”

Debra Ness, president of the National Partnership for Women & Families, called the proposal “a very welcome pro-family step that makes our country more fair and family friendly.”

“The proposed rule recognizes that, no matter who you choose to marry, all spouses have a right to care for one another. Recognizing that right strengthens the nation by bringing us closer to true marriage equality,” Ness said June 20.

She urged Congress to pass the proposed Family and Medical Insurance Leave (FAMILY) Act, which would establish a national paid family and medical leave insurance program.

The proposed rule has been approved by the Office of Management and Budget but has not been published yet in the Federal Register. Once published, the public will have 45 days to comment.

Comments, which should be identified by Regulatory Information Number (RIN) 1235-AA09, may be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov or mailed to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Labor Department, Room S-3502, 200 Constitution Ave., N.W., Washington, D.C. 20210.

To contact the reporter on this story: Gayle Cinquegrani in Washington at gcinquegrani@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the proposed rule is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-9l9lba and the fact sheet at http://op.bna.com/dlrcases.nsf/r?Open=gcii-9l9r9d