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DOL Announces Proposed Rule Extending FMLA Rights to Same-Sex Couples

Volume 13, Issue 9
June 20, 2014

Earlier today, the U.S. Department of Labor (DOL) announced a proposed rule that would allow an employee to take time off from work under the Family Medical Leave Act (FMLA) to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes the couple's marital status. The DOL plans to adopt a "state of celebration" definition in which spousal status under the FMLA will be determined not on the state in which the employee currently resides (as provided in the current FMLA regulations), but on the law of the state where the couple was married.

The DOL's move to revise the definition of "spouse" under the FMLA is in response to the United States Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which found a key component of the Defense of Marriage Act (DOMA) unconstitutional.

The proposed rule would allow eligible employees, regardless of where they live, to:

  • Take FMLA leave to care for their same-sex spouse with a serious health condition.
  • Take qualifying exigency leave due to their same sex spouse's covered military service.
  • Take military caregiver leave for their same-sex spouse.

Although the required Notice of Proposed Rulemaking (NPRM) has not been published in the Federal Register as of yet, the NPRM, along with a fact sheet and frequently asked questions can be accessed here and on the DOL's website.

Once the final rule change is adopted, employers will need to review and amend their FMLA policy and procedures, as well as FMLA-related forms and notices.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.