FMLA Protections for Same-Sex Couples Expanded

A recent change to the Family Medical Leave Act (FMLA) has given employers yet another thing to keep in mind as they administer their employee leave programs.  The Department of Labor (DOL) recently issued a Final Rule revising the regulatory definition of “spouse” under the FMLA.  The Final Rule amends the regulatory 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.  Under the new law, the FMLA now gives spouses in same-sex marriages the same ability as opposite-sex spouses to exercise their FMLA rights.  The effective date for the Final Rule was March 27, 2015.

The major feature of the Final Rule is that the DOL has transitioned from a “state of residence” rule to a “place of celebration” rule for the definition of “spouse” under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides.  The DOL reasoned that a “place of celebration” rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.  The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages, as well as marriages that were validly entered into outside of the United States if they could have been entered into in at least one state within the United States.

The Final Rule has been contested in at least one federal court.  On March 26, 2015, the United States District Court for the Northern District of Texas granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the DOL’s Final Rule revising the regulatory definition of spouse.  The case remains pending in federal court.  The DOL has announced that it will not enforce the Final Rule in Texas, Arkansas, Louisiana or Nebraska until the case is resolved.  Employers in all other states, however, remain subject to the new law.

Nick Birkenhauer is an attorney in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.