On February 25, 2015, the U.S. Department of Labor (DOL) finalized a new rule (which was published in the Federal Register) expanding protections under the Family and Medical Leave Act (FMLA) for same-sex married couples.
The FMLA provides 12 weeks of job-protected leave for eligible employees and can be used to care for a spouse with a serious health condition. Currently, same-sex couples qualify for such FMLA protection only if the state where they live recognizes their marriage. When the new rule takes effect on March 27, 2015, all married same-sex couples will be entitled to FMLA protection, regardless of whether their home state recognizes their marriage.
The new DOL regulation will redefine “spouse” to include “the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into.” This means that a same-sex couple’s marriage must be lawfully recognized where it was performed—either abroad or in one of the 37 states that has legalized same-sex marriage—for the couple to be covered by the FMLA. It will no longer matter whether their marriage is legal where they reside.
Employers in states that have not legalized same-sex marriage will need to be prepared for a potential uptick in FMLA leave applications after the rule takes effect in March. The new regulation is unlikely to result in significant changes for employers in states that have legalized same-sex marriage.