New DOL Rule Expands FMLA Rights Of Workers in Legal Same-Sex Marriages

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By Gayle Cinquegrani

Feb. 23 — Workers in legal same-sex marriages will be able to take job-protected leave under the Family and Medical Leave Act to care for a seriously ill spouse even if the state where they live does not recognize same-sex marriages, under a final rule announced by the Labor Department Feb. 23.

Previously, married same-sex couples could be considered spouses under FMLA regulations only if they resided in a state that recognized same-sex marriage.

The Labor Department changed the test for FMLA applicability to comply with the U.S. Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675, 118 FEP 1417 (U.S. 2013), which struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

“The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one,” Labor Secretary Thomas Perez said in a Feb. 23 statement announcing the rule change. “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families—without the threat of job loss,” Perez said.

The final rule (RIN 1235-AA09) was published in the Federal Register Feb. 25 (80 Fed. Reg. 9,989). It will take effect 30 days after publication.

‘Spouse' Redefined

The rule changes the definition of “spouse” in 29 C.F.R. §§ 825.102 and 825.122(b) from a “state of residence” orientation to a “place of celebration” orientation that looks to the law of the place where the marriage was performed.

In the preamble to the rule, the DOL said the switch from a “state of residence” rule to a “place of celebration” rule will ensure all legally married couples, whether opposite-sex or same-sex, “will have consistent federal family leave rights regardless of where they live.” As of Feb. 13, the DOL said, 32 states and the District of Columbia allow same-sex couples to marry.

The DOL said in the final rule's preamble that the proposed rule elicited 77 comments representing more than 18,000 individuals. Most individual comments were identical or nearly identical letters that were part of “a comment campaign” by the Human Rights Campaign, according to the DOL. It said additional comments were submitted by other advocacy organizations, labor organizations, employer associations, a state agency, individuals and a group of 23 U.S. senators.

“The vast majority of commenters, including the HRC letter-writing campaign commenters, applauded the Department's proposed use of a place of celebration rule,” the preamble said.

Worker Mobility Encouraged

Some commenters predicted this change will encourage worker mobility by enabling employees in same-sex marriages to accept promotions or new jobs in other states.

Commenters also said a place of celebration rule will benefit employers that operate in more than one state by making it easier for them to administer their employees' FMLA benefits.

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

To contact the reporter on this story: Gayle Cinquegrani in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the final rule is available at


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