On March 27, 2015, employers must provide FMLA benefits to same-sex couples who are legally married regardless of whether the employee lives in a state that recognizes same-sex marriage.
What is the FMLA?
The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. More specifically, eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period for the following reasons:
- for the birth of the employee’s child and for newborn care;
- for the placement of a child with the employee for adoption or foster care;
- to care for the employee’s spouse, parent, son, or daughter with a serious health condition; or
- when the employee is unable to perform the functions of his or her job due to the employee’s own serious health condition.
FMLA Pre and Post United States v. Windsor
Before the June 2013 U.S. Supreme Court’s decision in United States v. Windsor, Section 3 of the Defense of Marriage Act (“DOMA”) restricted the definition of marriage for purposes of federal law to opposite-sex marriage. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized same-sex marriage.
The Windsor decision, however, struck down Section 3 of DOMA, which effectively extended FMLA rights to same-sex couples, but only if they resided in a state that recognized same-sex marriages. This is because the FMLA defined the term “spouse” according to the law of the state in which the employee resides. Therefore, even if an employee was legally married under the laws of a state that recognized same-sex marriage (like California), that employee would not be entitled to FMLA leave if he or she lived in a state that did not recognize same-sex marriage (like Texas).
To address this problem, the Department of Labor enacted a “state of celebration” rule, which goes into effect on March 27, 2015. Under the state of celebration rule, spousal status for purposes of FMLA is determined by the law of the state where the employee was married (not the law of the state where the employee resides). As a result, if an employee marries his or her spouse in a state that recognizes same sex marriage, they are considered married for federal FMLA purposes even if they ultimately reside in a state that does not recognize same-sex marriage. Using the same example mentioned above, the employee would now be entitled to take FMLA in Texas because the employee was married in California. Put simply, as of March 27, 2015, employers must provide FMLA benefits to same-sex couples who are legally married regardless of whether the employee lives in a state that recognizes his or her marital status.
What Does this Mean for Employers?
Employers should train their human resources department and supervisors on the new rule. Companies should also review and amend their FMLA policies, as well as all FMLA-related forms and notices, to the extent that they define “spouse” in a way that does not account for the new rule. It is important to note, however, that the new rule applies to individuals who enter into a same-sex marriage. It does not protect civil unions or domestic partnerships.
