The United States Department of Labor has finalized a rule that will extend the protections of the Family and Medical Leave Act (FMLA) to married same-sex couples, regardless of what state they live in.
Enacted in 1993, the FMLA permits eligible employees to take up to 12 weeks of unpaid, job-protected leave to care for a spouse or for a “qualifying exigency” arising out of the fact that the employee’s spouse is a military member on covered active duty. The FMLA also allows an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness to take up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to provide care for the service member. Finally, the FMLA ensures that an employee will not lose any group health insurance for taking FMLA-associated leave.
The new rule amended the regulatory definition of “spouse” so that it now includes same-sex partners. Going forward, an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse, regardless of the state in which the employee resides.
The rule change was enacted to conform the FMLA to the U.S. Supreme Court ruling in United States v. Windsor, where the Court struck down the federal Defense of Marriage Act provision that limited the definitions of “spouse” and “marriage” to opposite-sex marriages for purposes of federal law.
An employee in a same-sex marriage will not need to look at the leave laws of the state where the employee resides, if the employee entered into a legal marriage or is in a legal common law marriage. The District of Columbia and 37 states have extended the right to marry to both same-sex and opposite-sex couples. Additionally, 18 countries extend the right to marry to both same-sex and opposite-sex couples.
The rule change will take effect on March 27, 2015. Employers should ensure that by that date their leave policies reflect that leave for legal same-sex spouses is covered under the FMLA. The FMLA does not apply to civil unions or domestic partnerships.