On June 20, 2014, the Department of Labor (“DOL”) announced its proposal to change the FMLA’s definition of “spouse”. According to the DOL, the purpose of the proposed change is to “ensure that same-sex couples who have legally married will have consistent FMLA rights regardless of where they live.”
Under the current FMLA regulations, employees who live in states that do not recognize same-sex marriage (such as Florida) cannot take FMLA leave to care for their same-sex spouse, even if they were legally married in another state or country. The DOL’s proposal will eliminate this “place of residence” rule and replace it with a “place of celebration” rule. Under the new rule, an employee’s spousal status is determined by the law of the state where the employee got married and specifically includes same-sex marriages and common-law marriages. (Marriages entered into abroad also are recognized, provided they could have been entered into in at least one state).
What does the change mean for employers?
The change will mean that an eligible employee will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, to care for a same-sex spouse who is a covered military member with a serious illness or injury (military caregiver leave), or for a qualifying exigency due to a same-sex spouse’s covered active duty status or call to active duty. An eligible employee also will be able to take FMLA leave to care for the same-sex spouse’s child as the FMLA’s definition of “son or daughter” includes a stepchild.
But don’t change your handbooks yet! There will be a 45-day public comment period on the DOL’s proposed rule and (assuming no changes) the rule will go into effect sometime after the close of the comment period. We will update you when that happens. Until then, the “place of residence” rule still applies. For all of you Florida employers, this means that an employee living in Florida cannot take FMLA leave for a same-sex spouse. You can, of course, grant the employee a non-FMLA leave consistent with your other leave policies.
