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.

In our example, the employee who got married in Maryland to a same-sex spouse could take FMLA spousal leave regardless of the state where that employee lives—even if the state of residence does not recognize same-sex marriages.

As of the date of this blog, marriages between persons of the same sex are authorized in the District of Columbia and the following 19 states:

California Maryland New York
Connecticut Massachusetts Oregon
Delaware Minnesota Pennsylvania
Hawaii New Hampshire Rhode Island
Illinois New Jersey Vermont
Iowa New Mexico Washington

Eleven additional states have pro-marriage court rulings on hold pending appeal.

The proposed regulations would also affect the right to use FMLA leave to care for a stepchild. Under the proposed rule, an employee in a valid same-sex marriage could use FMLA to care for a stepchild without needing to prove in loco parentis status.

New Rules Do Not Affect Domestic Partnerships

Many employers have employment benefit policies which address domestic partnerships and civil unions. Neither the Windsor decision nor this proposed rule provides any additional protection to couples in a domestic partnership or civil union. The FMLA does not offer protected leave for care of a partner in a domestic partnership or civil union.

However, some state laws do offer such protections. Employers should consult with an employment benefits expert to determine whether their FMLA policies comply with all applicable laws.

Updating Your FMLA Policy

If your organization is subject to the FMLA, you should verify that your FMLA policies are consistent with the Windsor decision, which means that an employee must be permitted to use FMLA leave to care for a spouse who is of the same sex, if same-sex marriage is recognized in the state where the employee lives.

You may also want to update your FMLA policies now to conform with the proposed rule, to allow employees to use FMLA leave to care for a spouse of the same sex, regardless of the employee’s state of residence, as long as the marriage was valid in the jurisdiction where it was performed. The current law does not require this, but if the proposed rule is adopted, this will be a change that will need to take place whenever the new rule becomes effective.

Employers are free to adopt leave policies that are “more generous” than what is currently required by the FMLA.

Questions about how to proceed? The ACA experts at Bell Associates can help. Call us at 203-707-1300 or email info@bellassoc.com. You can also visit us at www.bellassoc.com.

This article refers to regulations issued through June 30, 2014.  It is intended to be a summary of important issues and should not be considered legal or tax advice.

© Bell Associates and “Ask the Professionals,” 2014. Unauthorized use and/or duplication of this material without express and written permission from Bell Associates is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Bell Associates and “Ask the Professionals” with appropriate and specific direction to the original content.