Marriage Equality and the FMLA

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question of when same-sex couples were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify issues for multi-state employers, the Department of Labor is taking steps to clarify that issue under the Family & Medical Leave Act (FMLA).

The FMLA

The FMLA is a federal law providing unpaid leave to employees who have worked for a company for at least twelve months, and who worked at least 1,250 hours in the calendar year preceding the request for leave. Leave may be taken for a variety of reasons, including to care for a spouse with a serious health condition. Thus, a key consideration in determining eligibility for FMLA leave is whether the person for whom you intend to care is a “spouse” under applicable law. The term “spouse” used to be defined by the Defense of Marriage Act (DOMA). However, DOMA’s definition of marriage was declared to be unconstitutional under the Windsor decision.

The Reaction to Windsor

In the wake of the Windsor decision, the federal government was forced to come up with a new approach to federal benefits impacting spouses. Different agencies adopted different approaches, and sometimes applied different standards to different laws administered by the same agency. With regard to the FMLA, the U.S. Department of Labor adopted a “state-of-residence” rule, meaning that if a same-sex couple’s marriage was not legal in the state where they lived, they were not entitled to spousal leave under the FMLA. So, for example, in 2003 a same-sex couple living in Pennsylvania, who are employed in Delaware and came to Delaware to get married, would not be entitled to spousal leave benefits under the FMLA because their marriage would not be recognized by the Commonwealth of Pennsylvania (a federal judge in Pennsylvania struck down the state’s ban on same-sex marriage in 2014).

This “state-of-residence” rule imposed a significant administrative burden on employers, who would have to research the legality of a couple’s marriage in their home state as part of the FMLA eligibility analysis. The problems are particularly taxing on the East Coast, where individuals frequently live and work in adjacent states. It also created a problem for businesses with a telecommuting workforce, where the HR professionals could have to familiarize themselves with the laws in all 50 states.

A New Approach

Recognizing the administrative burden imposed on employers, the Department of Labor had revised its approach to spousal benefits under the FMLA, adopting a “place-of-celebration” rule. Under the new rule, so long as the marriage is legal in the location in which it is celebrated, the couple will be considered spouses for purposes of being entitled to leave under the FMLA. This approach reduces the administrative burden on employers, who can now treat same-sex marriages the same way that they treat traditional marriages: by reviewing a copy of the marriage certificate of simply assuming that the marriage is valid.

The new rule is part of a formal rule-making process, and will be issued on February 25, 2015. It becomes effective March 27, 2015.

Bottom Line

The Department of Labor’s revised approach to spousal leave benefits is intended to give same-sex spouses the same access to FMLA leave as all other married partners. It has the added benefit of simplifying the administrative process for employers, which is already onerous under the FMLA. Employers who have already voluntarily extended FMLA leave to all same-sex spouses will not experience any change in the process, and can breathe an added sigh of relief!

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