• FMLA Leave for Same Sex Couples?
  • July 16, 2014 | Author: Michael A. Manzler
  • Law Firm: Buckley King A Legal Professional Association - Cincinnati Office
  • Employers in Ohio, Kentucky, and other states that do not currently recognize same-sex marriages may have to change their leave practices under the Family and Medical Leave Act ("FMLA") to allow for leaves to care for same-sex spouses, pursuant to a proposed new rule from the U.S. Department of Labor ("DOL").

    Last year, in United States v. Windsor, the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional.  DOMA had prohibited, for purposes of all federal laws, the recognition of any same-sex union as a “marriage.”  Following the ruling, President Obama instructed his Administration, including the DOL, to review all relevant federal regulations to ensure that the Windsor decision’s implications for federal benefits and programs were adopted.

    The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.  Because some of these reasons can involve the condition of an eligible employee’s “spouse,” the Windsor-required updating has caused the DOL to propose an amended definition of spouse under the FMLA “so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.”

    In short, the DOL is proposing to move from its current “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as the “place of celebration” rule).  The proposal would change the regulatory definitions of spouse -- 29 CFR §§ 825.102 and 825.122(b) -- to look to the law of the place where the marriage was performed, as opposed to the law of the state in which the employee resides or is employed.  “A place of celebration rule,” according to the DOL, “would allow all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights.”

    The DOL’s proposed definitional change would mean that eligible employees, regardless of the laws on same-sex marriage of the state in which they live or work, would be able to:

    (1) take FMLA leave to care for their same-sex spouse with a serious health condition;

    (2) take “qualifying exigency” leave due to their same-sex spouse’s covered military service;

    (3) take military caregiver leave for their same-sex spouse;

    (4) take FMLA leave to care for their step-child (child of employee’s same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met; and

    (5) take FMLA leave to care for their step-parent (same-sex spouse of the employee’s parent), even though the step-parent never stood in loco parentis to the employee.