Legal Alerts

02 Mar 2015

Employers Take Note: Same-Sex Marriages Must Be Recognized for FMLA Purposes

Employers Take Note:on March 27, 2015, the Department of Labor’s (DOL) new rule amending the Family and Medical Leave Act of 1993 (FMLA) definition of spouse takes effect. All eligible employees in legal marriages (including same-sex and common law marriages) will be able to take FMLA leave to care for their spouse or family member, regardless of whether they live in a state that recognizes their marital status.

The DOL’s Final Rule revises the definition of spouse to use a “place of celebration” criteria, which looks to the law of the place where the marriage was entered into to determine whether an individual is a “spouse” under the FMLA. The revised definition expressly includes employees in legally recognized same-sex marriages. Under the Final Rule, spouse means a husband or wife as defined or recognized in the state where the employee was married and includes individuals in a same-sex marriage or common law marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state. This change to the place of celebration rule allows all legally married couples (whether opposite-sex, same-sex, or married under common law) to have consistent federal family leave rights regardless of where they live.

The Final Rule also includes editorial changes to make references to husbands, wives, mothers, and fathers gender-neutral where appropriate, so that they apply equally to opposite-sex and same-sex spouses. These changes do not affect other provisions of the FMLA, such as eligibility, notice, and certification.

Related Issues of Significance

  • Leave to Care for Stepchildren and Stepparents
    Under the revised regulatory definition of spouse, eligible employees will be able to take FMLA leave to care for their stepchild (e.g., a child of the employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met. Similarly, eligible employees will be able to take FMLA leave to care for their stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
  • In Loco Parentis
    The DOL has consistently recognized the eligibility of individuals, whether married or not, to take leave to care for a partner’s child provided that they meet the in loco parentis requirements of providing day-to-day care or financial support for the child. The Final Rule makes no change to the meaning of in loco parentis with regard to the definition of either “son or daughter” or “parent”.
  • Documenting Family Relationships
    The Final Rule makes no changes to the regulation that permits employers to require employees who take leave to care for a family member to provide reasonable documentation of the family relationship. Employers have the option to request documentation of a family relationship but are not required to do so. An employee may satisfy an employer’s request to confirm a family relationship by providing either a simple statement asserting that the requisite family relationship exists or other documentation (such as a court record). The employee has discretion on which method to use. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempts to exercise his or her FMLA rights.
  • Domestic Partnerships
    The Final Rule makes no change to the status of domestic partners. An individual in a domestic partnership or civil union does not meet the definition of spouse under the FMLA. That said, employers are free to provide greater rights than those provided for under the FMLA.

If you have questions regarding how these revisions to the FMLA will impact your business please do not hesitate to contact any of the lawyers at The Lowenbaum Partnership, L.L.C.


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