Family Medical Leave Act to Recognize Legally Married Same-Sex Couples

June 26, 2014

The Wage and Hour Division of the U.S. Department of Labor (“DOL”) recently announced a proposed rule that will extend Family and Medical Leave Act (“FMLA”) benefits to all eligible employees in legal same-sex marriages, regardless of residency. The FMLA’s current definition excludes certain same-sex couples, such as those who were legally married in one state, but who move to another state where same-sex marriage is not recognized.

The rule is a result of the United States Supreme Court’s decision last summer in U.S. v. Windsor. In Windsor, the Court declared Section 3 of the Defense Against Marriage Act unconstitutional. Section 3 defined “marriage” and “spouse” as to only apply to heterosexual unions. The decision left the question of same-sex marriage to be answered by state law, rather than federal law.

Under the new definition, more same-sex couples will be allowed to take FMLA leave for qualifying reasons. Such qualifying reasons include taking leave for a spouse’s serious health condition, to care for a spouse who is a covered service member with a serious injury or illness, and for a qualifying exigency of a covered military spouse.

The proposed rule is subject to a notice and comment period before it can be implemented.

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