Family and Medical Leave Act Update to Give Leave to Same-sex Unions

Posted by Charles Middleton on 02/27/2015

Q: Following the historic U.S. Supreme Court decision in Windsor in the summer of 2013, job-protected leave under the Family and Medical Leave Act (FMLA) was extended to some, but not all, same-sex spouses. What has changed since then?

A: In August 2013, the U.S. Department of Labor updated its guidelines to extend FMLA spousal leave to eligible employees with same-sex spouses based on their state of residence, not the state in which they were married. So if an employee was married in a state that recognized same-sex marriage but then moved to a state that didn't, that employee was not entitled to job-protected leave. Just this week, the Labor Department updated its rule to provide leave to any employee who holds a marriage license from a state that recognizes same-sex marriage, regardless of where they currently live. The new rule goes into effect March 27.

Q: Why the change?

A: According to the Labor Department, this change is intended to make the treatment of same-sex couples more consistent under the FMLA. The change also is consistent with the way same-sex couples are treated for federal tax and ERISA (Employee Retirement Income Security Act of 1974) Title I purposes as well, both of which recognize all same-sex marriages, regardless of state of residence.

Q: What else did the new rule change clarify?

A: While the rule change doesn't apply to civil unions, a common-law marriage is covered if the marriage was validly entered into in a state that permits the formation of common law marriages. The new law also specifically states that FMLA leave can be taken to care for stepchildren or a parent's same-sex spouse.

Q: What should employers do now?

A: With the new law set to go into effect in a few weeks, employers should notify their workforces of these impending FMLA changes. Employers also need to remember that when reviewing requests for job-protected FMLA leave, they have the right to require any eligible employee to provide reasonable documentation confirming a marriage or family relationship.


Published The Oklahoman, February 27, 2015