10 Days until all Same-Sex Marriages Recognized by FMLA

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As announced by the U.S. Department of Labor on February 25, 2015, employers must extend benefits under the Family and Medical Leave Act (FMLA) to all legally-wed same-sex couples as of March 27, 2015. Although some employers fear the burden of additional leave requests, many multi-state employers are welcoming the uniformity provided by the new rule.

The DOL’s announcement of the new FMLA rule follows the U.S. Supreme Court’s 2013 decision that a section of the Defense of Marriage Act was unconstitutional, which made most other federal marriage-dependent rights and benefits available to same-sex couples. Unlike these other laws, the FMLA was not affected by the Supreme Court’s ruling because the FMLA based its definition of the term “spouse” on that of the employee’s state of residence. Consequently, FMLA policies were not in line with those for other federally-mandated benefits.

Under the new rule, the FMLA will follow a “place of celebration” rule that looks to the state where the marriage took place, rather than the employee’s state of residence, to determine the legality of the marriage. In addition, the rule expressly includes same-sex marriage and covers same-sex marriages that took place in another country.

As a result of the rule, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouses or family members, even if their marriage is not recognized in the state where they live. In general, employers with 50 or more employees in a 75 mile radius are subject to the FMLA, although some states grant leave benefits to employees of even smaller employers.

To comply with the new rule, employers should review their employee handbooks and FMLA policies, and consider additional training for employees including HR professionals, managers, and supervisors who are involved in the leave management process.

Additional information about the extension of FMLA benefits to same-sex couples is available from the Department of Labor’s Wage and Hour Division and Business Insurance magazine (subscription required).