DOL Takes Action So That FMLA Applies To Same-Sex Spouses Everywhere

Randi Klein Hyatt
Randi Klein Hyatt

The Department of Labor announced on June 20, 2014, that it would be issuing a Notice of Proposed Rulemaking (NPRM) confirming that employees are eligible for leave to care for a same-sex spouse under the Family and Medical Leave Act (FMLA) regardless of their state of residence.  Secretary Tom Perez announced that the proposed revisions would ensure that the FMLA applied to all families equally, permitting same sex marriage partners to fully exercise their FMLA rights without concern.  The NPR was issued in response to the Supreme Court’s decision last year in United States v. Windsor, 113 S. Ct. 2675 (2013) which invalidated the 1996 Defense of Marriage Act’s exclusion of state-sanctioned, same-sex marriages from the federal definition of marriage.

The NPR’s primary features include removing the state of residence rule to a rule where the marriage “place of celebration” occurred. The proposed definition of spouse expressly includes same-sex marriages, in addition to common law marriages.   If implemented, the new definition of spouse would be:  “Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

The NPRM has not yet been published in the Federal Register.

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