A proposed Department of Labor rule affects how your organization’s FMLA policy treats married couples of the same gender.
What is the FMLA?
The Family and Medical Leave Act of 1993 (the FMLA) requires covered employers to allow their eligible employees to take up to 12 weeks of unpaid leave per year to care for a family member (including a spouse) who suffers from a serious medical condition. The employer must allow the employee to stay on the group health insurance plan, and after the leave ends, the employee must be allowed to return to the same or equivalent position with equivalent compensation.
Last year, in the case of United States v. Windsor,the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, which specifically limited the definition of marriage—for purposes of federal law—as only between one man and one woman. As a result of the Windsor decision, federal law now recognizes valid same-sex marriages.
But many federal laws, including the FMLA, look to state law definitions of marriage when determining who is eligible for benefits. The FMLA permits spousal leave benefits only when the marriage is legal in the state where the employee resides. So an employee who gets married to a spouse of the same sex in Maryland, where same-sex marriage is legal, but who lives in West Virginia, where it is not legal, would not be eligible for FMLA spousal leave.
New FMLA Rules Proposed
This policy would change under new rules proposed by the Department of Labor in June. The proposed rule would modify FMLA regulations so that an employee is eligible for FMLA leave to care for a spouse if the marriage was valid where it was performed. This is known as the “state of celebration” approach, and it has already been adopted by other federal agencies including the IRS, the State Department, and the Department of Defense. Continue reading
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