Coverage: All FMLA covered employers
Effective Dates: Currently in effect.
Overview: The Department of Labor (DOL) has published a final rule that revises the definition of "spouse" under the Family and Medical Leave Act (FMLA).
Action Required: All eligible employees who have legally entered a marriage--opposite-sex, same-sex, or common-law--in a state that recognizes such marriages have consistent FMLA rights, regardless of the state in which they live (or work). Employers covered by the FMLA should review their policies and practices to ensure compliance with the FMLA's new definition of spouse. Employers should also ensure that any policies implemented to verify legal marriages are applied consistently and fairly to all employees. Note that no changes are necessary to our standard model FMLA handbook policy. Contact your HR Business partner if you have any questions.
The Details
Background
Prior to the new rule, the FMLA defined "spouse" by looking at the law in the employee's state of residence to determine whether an individual was considered a spouse. If an employee lived in a state that did not recognize same-sex marriage, that employee was not able to take FMLA leave to care for his or her same-sex spouse even if the couple were legally married in another state.
New Rule
Under the DOL's final rule, the FMLA's new definition of spouse considers the law of the state in which the marriage was entered into, rather than the employee's state of residence, when determining marital status. This "place of celebration rule" allows an employee who legally entered into a same-sex marriage in one state to have consistent FMLA leave rights in all states, regardless of where the employee lives (or works). Additionally, those who have validly entered into a legal same-sex marriage outside of the United States have consistent FMLA rights in all states, if the marriage could have been legally entered into in at least one state domestically.
FMLA Leave Rights Impacted
The FMLA generally covers employers with 50 or more employees and allows eligible employees job-protected leave under certain circumstances. Among other leave entitlements, the FMLA provides spousal leave in the following situations:
- To care for a spouse with a serious health condition;
- For a qualifying exigency related to a spouse's covered military service; or
- To care for a spouse who is a covered military service member with a serious illness or injury.
Additionally, the change could impact FMLA leave taken to care for a step-child (the child of a legal same-sex spouse), or a step-parent (the employee's parent's same-sex spouse).
Legal Challenge
On March 26, 2015, the United States District Court for the Northern District of Texas, in Texas v. United States, Civil Action No. 7:15-cv-00056 (N.D. Tex.), granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the Department's Final Rule discussed above.
The court enjoined the DOL from enforcing the final rule. The DOL has taken the position that the court order only restricts the enforcement of the final rule against the states of Texas, Arkansas, Louisiana, and Nebraska in their capacity as employers and that the DOL remains free to enforce against private employers.
As always, please contact your HR Business Partner if you have any questions.
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This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.
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