DOL rule would expand FMLA coverage for same-sex couples

The following post was taken from “Employment Law Business Guide,” which is hosted on the website of McLane, Graf, Raulerson & Middleton.

The defeat of the Defense of Marriage Act in United States v. Windsor continues to have a ripple effect when it comes to other federal regulations.

On June 20, the Department of Labor issued a proposed rule that would extend the protections of the Family and Medical Leave Act to all eligible employees in legally recognized same-sex marriages, regardless of where the employees live.

The proposal is in light of the U.S. Supreme Court’s decision in Windsor, which struck down DOMA’s provision that limited “marriage” to opposite-sex unions and “spouse” to individuals of the opposite sex who are married for purposes of federal law.

The DOL’s proposed change would expand the FMLA’s definition of “spouse” so that it applies to an employee legally married in any state (the so-called “state of celebration” rule), as opposed to the state in which the employee resides (“state of residence” rule).

That is an important distinction because of differences in how states treat same-sex marriage. The current definition of “spouse” under the FMLA looks to the law of the employee’s state of residence to determine if the employee is eligible for leave on the basis of the spouse’s medical condition. Under the proposed rule, an employer in a state that does not recognize same-sex marriage would still be required to provide FMLA leave to a qualifying employee that entered into a same-sex marriage in another state where such a union is permitted.

Additionally, the newly proposed definition expressly references the inclusion of same-sex marriages and encompasses same-sex marriages entered into both within the United States, as well as any same-sex marriages performed abroad that could have been entered into in at least one state.

It is, of course, only a proposed rule at this point, and the period for public comment will begin shortly. However, it is anticipated the rule will be adopted by the DOL with little to no substantive changes.

And when the rule does come to pass, it is important that employers — especially those with multi-state or national operations — examine their FMLA policies and forms for necessary modifications.

Kenton Villano is an associate in the litigation department at McLane, Graf, Raulerson & Middleton, which has offices in Massachusetts and New Hampshire.