As of March 27, 2015, all same-sex spouses will be afforded the same rights available to opposite-sex spouses under the Family and Medical Leave Act (FMLA). Under current Department of Labor (DOL) regulations, same-sex spouses are afforded the same rights as opposite-sex spouses for purposes of the FMLA only if they reside in a state where same-sex marriage is recognized. The new DOL regulations abandon the “state of residence” rule for a “place of celebration” rule that recognizes any marriage that is recognized under the state law where the marriage was entered into, or in the case of a marriage that was entered into outside of any state, if the marriage is valid where entered into and could have been entered into in any state.
The new rule comes in response to the United States Supreme Court’s ruling in United States v. Windsor in 2013 that held the definition of “spouse” under the Defense of Marriage Act as a person of the opposite sex to be unconstitutional. The change in DOL regulations allows all employees in legal, same-sex marriages to take federally protected FMLA leave to care for a spouse with a serious health condition, to take qualifying exigency leave due to a spouse’s covered military service, and to take military caregiver leave for a spouse, regardless of the state where they reside. FMLA leave can also be taken to care for any step-parent or step-child where the relationship between step-parent and step-child is established by same-sex marriage entered into in any state. However, FMLA protections do not extend to civil unions under the new regulations.
If you have any questions regarding FMLA leave or any other leave that may be taken to care for a spouse or other family member, please contact any of the attorneys at Royal LLP at (413) 586-2288.