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eLABORate: New Revisions to the Family Medical Leave Act Expand Coverage

March 04, 2015

On February 25, 2015, the U.S. Department of Labor finalized a rule which extends the Family Medical Leave Act’s (“FMLA”) protections to married same-sex couples. The rule, originally proposed in June 2014, implements necessary policy changes resulting from the U.S. Supreme Court’s landmark United States v. Windsor decision which overturned the section of the Defense of Marriage Act barring the federal government from recognizing same-sex marriages.

Immediately following the Windsor decision, the Department of Labor announced what the then-current definition of “spouse” under the FMLA allowed: Eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognizes same-sex marriage. In order to ensure consistent application of FMLA rights from state to state, this new rule amends the regulatory definition of “spouse.”

The Department of Labor has adopted a “place of celebration rule” which allows all legally married couples, whether opposite-sex or same-sex, to receive FMLA rights regardless of where they live. The revised definition also includes those employees in lawfully recognized same-sex and common law marriages entered into outside of the United States as long as they could have been entered into in at least one state.

Additionally, the amended regulations have utilized gender-neutral terms where possible. With these changes, eligible employees, regardless of their residence, will be able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition, take qualifying exigency leave for their lawfully married same-sex spouse’s covered military service or take military caregiver leave for their lawfully married same-sex spouse. FMLA leave will now be afforded to eligible employees to care for their stepchildren regardless of whether the in loco parentis requirement is satisfied.

The Department estimates that this definitional revision will result in 6222 new instances of FMLA leave taken to care for an employee’s same-sex spouse, stepchild or stepparent; 990 new instances for qualifying exigency purposes; and 990 new instances for military caregiver purposes.

The effective date of the new rule is March 27. Employers should review applicable leave policies to ensure compliance.