New FMLA Protections for Same-Sex Spouses

fmlaThe Family Medical Leave Act (FMLA) is arguably one of the most significant labor acts passed in the United Sates in the past century.  Passed in 1993 under the Clinton Administration, the FMLA gave protections to American workers who needed to take time to care for themselves, spouse or family members in the event of serious medical illness, adoption, child birth, etc.  Keeping current with the demands of today’s world, the FMLA has since been revised to include coverage and protections for service members and their families that are impacted by active duty and for military caregivers (yes I am summarizing).  Most recently, last month, more changes were announced by the US Department of Labor that will require every qualified employer to update their policies, paperwork, and thinking.

The Supreme Court’s ruling in United States v. Windsor found section 3 of DOMA (Defense of Marriage Act) unconstitutional in its limited definition of marriage for federal purposes as an institution between members of the opposite sex. This triggered the Department of Labor to redefine the term “Spouse” in the qualifications and applicability of the FMLA.  The Final Rule amends the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member regardless of where they live. That last part is important and is termed the ‘Place of celebration’ provision. Prior to this recent change, the definition of “spouse” under the FMLA did not include same-sex spouses who currently resided in a state that didn’t recognize same-sex marriage.

With State laws varying significantly on the issue of same sex marriage, a residency restriction was tricky.  Getting rid of that confusion makes sense to me.  After all, the FMLA is a Federal Law so why, if you were legally married in one state should that same marriage be unrecognized if you moved to another state.  This had been referred to as the “state of residence” rule.

The mission of the DOL here is to provide the same rights and protections to all Americans regardless of the employer’s thoughts or position on same sex marriage.  DOL Secretary of Labor Thomas E. Perez has made repeated comments to this effect saying: “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.”

The labor law landscape is fluid and constantly shifting to keep up to speed with the changes occurring in the world.  This small tweak to a definition will make a significant impact on the lives of many across our great country. No doubt there are more changes to come, so my advice to employers would be to keep current, stay tuned and support your local HR teams.  They have their work cut out for them.

 

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