As of March 27, 2015, federal job-protected leave under the Family and Medical Leave Act (FMLA) was granted to workers in legal, same-sex marriages. They will have the same rights as couples in opposite-sex marriages, under FMLA, regardless of where they live. On February 23, 2015, the U.S. Labor Department announced a final rule change to FMLA, redefining the word “spouse” to include people in same-sex marriages, just as it does those in opposite-sex marriages. In addition, the rule was changed to base whether a couple is “legally married” upon where the marriage was entered, rather than where the couple lives or works.
After the U.S. Supreme Court ruling in United States v. Windsor, 133 S. Ct. 2675 (2013), (striking down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional), a same-sex, lawfully married couple was not barred from FMLA’s protection, provided their marriage was legally recognized where they resided. If they lived or worked in a state that did not recognize same-sex marriage, FMLA spousal protection did not extend to them.
With this rule change, the Department of Labor replaces the “state of residence rule” with the “place of celebration rule.” If a same-sex couple is legally married in one of the thirty-one states or the District of Columbia where same-sex marriage is legal, they qualify for spousal leave protection under FMLA, regardless of whether the state in which they live is one that recognizes their marriage. See Definition of Spouse under the Family and Medical Leave Act, 80 Fed. Reg. 9989, 9991 (Feb. 25, 2015) (to be codified at 29 C.F.R. pt. 825).
Generally, FMLA allows workers in businesses with fifty or more employees to take job-protected, unpaid leave, or to substitute appropriate accrued paid leave, for up to a total of 12 workweeks in a 12-month period to welcome a new child, care for a spouse, child, or parent with a serious health condition, or for the employee to recover from his or her own serious health condition. See 29 U.S.C. § 2612. At the conclusion of FMLA leave, the employer must restore the employee to the same position or an equivalent position, with equivalent benefits, pay, and terms of employment. Id.
In light of the final rule, employers should review their employee handbooks, practices, procedures, and training programs to ensure that employees in same-sex marriages can take advantage of FMLA leave to the same extent as their co-workers in opposite-sex marriages, without interference or retaliation. Hall and Evans, LLC’s employment attorneys are available to assist employers with these reviews and training.
States recognizing same-sex marriages, include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, and the District of Columbia.