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New Proposed Policy About Who is Family Under the Family and Medical Leave Act

Published:  June 24, 2014

The Department of Labor recently announced a proposal to extend protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages across the country. The proposal came in light of the United States Supreme Court’s decision in U.S. v. Windsor, which struck down a provision under the Defense of Marriage Act (DOMA), which narrowly interpreted “marriage” and “spouse” only in the context of opposite-sex couples.

Under current federal law, the definition of “spouse” only applies to same-sex couples residing in states which recognize same-sex marriages. The proposed change would amend the definition of “spouse” under FMLA to allow all eligible employees in legal same-sex marriages to take FMLA leave to care for a spouse or relative regardless of which state the employee resides.

In a nutshell, FMLA protections will not be based on the law of the state where the employee resides, but rather on the law of the state where the marriage took place. For example, if an employee got married in Massachusetts but currently resides in Georgia, a state which does not recognize same-sex marriages, under the current proposal, he or she would be eligible to take FMLA leave to care for his or her spouse.

Once this proposal is finalized, employers should review their FMLA policies and procedures to ensure compliance with these changes in the law. If you have any questions regarding your obligations under FMLA please contact any of the attorneys at Royal LLP at (413) 586-2288.

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