FMLA’s Same-Sex Spousal Leave Rights Expanded

Julie Stich, CEBSMarch 12, 2015

Two friends of mine, both men, have been in a loving and committed relationship for several years. But until they got in their car and drove across the border to Iowa last October to get married, they weren’t afforded the spousal rights many of the rest of us take for granted.

The U.S. Supreme Court Windsor decision, announced in June 2013, paved the way for federal recognition and rights for same-sex spouses, and agency guidance followed suit. Another roadblock fell last month.

Based on a change in guidance announced by the Department of Labor on February 23, 2015, all FMLA-eligible workers who are legally married (whether in an opposite-sex or same-sex marriage) are now entitled to federal job-protected leave to care for a spouse who is seriously ill.

When the Family and Medical Leave Act of 1993 (FMLA) was passed, eligible workers employed by covered employers were given the right to take leave for their own serious health condition or to care for a family member with a serious health condition. Taking such leave would not jeopardize their job. Regulations tied to this federal law specified “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage, including common law marriage, in states where it is recognized.’’

On June 26, 2013, the U.S. Supreme Court issued a landmark decision regarding same-sex marriage. In United States v. Windsor, the Supreme Court affirmed lower federal court decisions striking down Section 3 of the Defense of Marriage Act (DOMA), which had defined “marriage” for federal purposes as a legal union between one man and one woman and a “spouse” as an opposite-sex husband or wife. Federal agencies were tasked with changing regulatory guidance to comply with the decision.

In August 2013, the Department of Labor (DOL) changed their FMLA guidance by getting rid of references to DOMA and affirming that spousal leave would be available for same-sex marriages. The DOL adopted the “state of residence” rule of thumb, in keeping with the spirit of the law and its guidance that called for marriage to be recognized by state law. The revised guidance said, “Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”

[Related: Employee Benefits for Same-Sex Couples: The DOMA Decision One Year Later]

In the following months, other agencies also revised their employee benefit plan guidance related to “spouses” to conform to the Windsor decision. All of the agencies, including the DOL on non-FMLA guidance, adopted a different approach based on the “state of celebration,” stating that for federal purposes, spouses would be considered legally married if they were married in a state that recognized same-sex marriage. It didn’t matter if they lived in a state that did not recognize such a marriage.

The DOL continued to review its FMLA guidance. On February 23, 2015, the DOL changed the FMLA rules to redefine “spouse” so that an eligible worker in a legal same-sex marriage will now be able to take leave for care for his or her spouse regardless of the state in which they live. With the change, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into, the “state of celebration.” This revised guidance, effective March 27, 2015, means all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights.

My friends now have the right to take job-protected leave to care for each other if one of them becomes ill, no matter where they live. I hope they never need to.