FMLA Leave Extended to Legally Married Same-Sex Spouses

FMLA

BY:  RACHEL D. GEBAIDETIMOTHY C. HAUGHEE

MARCH 18, 2015

Effective March 27, 2015, the U.S. Department of Labor’s regulations interpreting the Family and Medical Leave Act (“FMLA”) expands coverage to legally married same-sex spouses, even if the employee lives in a state that does not recognize same-sex marriages.

The FMLA requires covered employers to provide the following leave benefits to employees who have worked for the employer for at least 12 months and at least 1,250 hours in the preceding 12 months and who work in a location where the employer has at least 50 employees within a 75 mile radius: up to 12 weeks of unpaid leave in a 12 month period for certain specified events including (i) leave to care for their spouse with a serious health condition; (ii) qualifying exigency leave due to their spouse’s covered military service; and (iii) military caregiver leave for their spouse.

How We Got Here

The foregoing FMLA leave previously was extended to spouses in opposite-sex marriages and same-sex marriages, but only if the FMLA-eligible employee lived in a state that recognized same-sex marriages.

After the U.S. Supreme Court’s decision in United States v. Windsor, the Department of Labor proposed the change to the definition of “spouse” in the FMLA regulations. For FMLA purposes, the term “spouse” will no longer be defined by the employee’s state of residence but instead will be the place in which the marriage occurred.

If the marriage was legal in the state where the couple was married, whether opposite-sex or same-sex, the FMLA will require covered employers to provide the leave to eligible employees even if the state in which the couple currently resides does not recognize the marriage. As a result, FMLA-eligible employees, regardless of where they live, will be able to take (i) leave to care for their spouse with a serious health condition, (ii) qualifying exigency leave due to their spouse’s covered military service, and (iii) military caregiver leave for their spouse.

What Does This Mean for Florida Employers?

In January, 2015, Florida became the country’s 36th state to recognize same-sex marriages. If a same-sex couple legally married in Florida this year, then a spouse who qualifies for FMLA leave may exercise such leave to care for their spouse regardless of whether they live in Florida or move to another state, even if the state does not recognize the marriage.

Similarly, if a same sex couple legally married in another state before 2015 and currently resides in Florida, then a spouse who qualifies for FMLA leave may exercise such leave to care for their spouse.

On April 28, 2015, the U.S. Supreme Court is scheduled to hear oral arguments on whether same-sex marriage bans are prohibited by the U.S. Constitution’s guarantee of equal protection under the law. The Court’s decision, which is expected before the end of June, could impact the DOL’s new definition of “spouse” and employers’ obligations to FMLA-eligible employees in a same-sex marriage. The firm will issue an update after the Court’s decision is released this summer.

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