This includes FMLA leave for an employee who needs to care for a same-sex spouse with a serious health condition, as well as leave because of a qualifying exigency due to the employee’s same-sex spouse being on covered active duty and FMLA military caregiver leave if the employee is the same-sex spouse of a covered servicemember.Employers should also ensure that human resource personnel, managers and supervisors are aware of this change in FMLA coverage.The result is that federal rights and benefits, including FMLA spousal leave benefits, now apply equally to state-sanctioned same-sex couples and heterosexual couples.
Some groups are urging the DOL to adopt a rule that would recognize FMLA rights based on the state where the marriage was celebrated, not the state of residency.
Although the DOL has not yet proposed any rule changes on this issue, we will keep an eye on it and will let you know if any changes to the marriage recognition rules are proposed.
This means that the employer must determine if same-sex marriages are lawful in the state where the employee requesting FMLA leave lives, not where the employer is located or where the employee actually works.
At present, 13 states plus the District of Columbia recognize same-sex marriages as lawful: California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.
In finding Section 3 of DOMA unconstitutional, the Court effectively eliminated the definition of “marriage” or “spouse” under federal law and deferred the regulation of marriage to the states.
The result is that federal rights and benefits, including FMLA spousal leave benefits, now apply equally to both heterosexual and same-sex couples who are legally married under state law.Update Your FMLA Policy for Same-Sex Spousal Leave If you have employees living in one or more states that recognize same-sex marriages (or in the District of Columbia), update your FMLA policy, forms and practices to incorporate spousal leave benefits for recognized same-sex marriages.This includes FMLA leave for an employee who needs to care for a same-sex spouse with a serious health condition, leave because of a qualifying exigency due to the employee’s same-sex spouse being on “covered active duty” and FMLA military caregiver leave for an employee who needs to care for a same-sex spouse who is a “covered servicemember” or “covered veteran.” Be sure to look at the state where the employee resides when determining whether same-sex marriage is deemed lawful and recognized for FMLA purposes.Members may download one copy of our sample forms and templates for your personal use within your organization.Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices.If you have any questions regarding FMLA spousal leave or the FMLA generally, please contact one of our Labor and Employment attorneys. Gray 216.348.5418 [email protected] in our Labor and Employment law practice are dedicated to representing management in all aspects of workplace law.