Effective March 27, 2015, employers must administer the Family and Medical Leave Act (“FMLA”) to give spouses in same-sex marriages the same ability as all spouses to fully exercise their rights under the FMLA. This, pursuant to a Final Rule of the Department of Labor (“DOL”), amends the definition of “spouse” in the FMLA regulations, and shifts the focus of a legal marriage from a “state of residence” rule to a “place of celebration” rule.
In other words, employers must now look to the law of the place in which the marriage was entered, as opposed to the law of the state in which the employee resides. In the DOL’s view, a “place of celebration” rule allows all legally married couples, whether traditional or same-sex, to enjoy consistent family leave rights regardless of whether their state of residence recognizes same-sex marriage.
Impact of the New Rule:
- An eligible employee may take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition.
- An eligible employee may take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service.
- An eligible employee may take military caregiver leave for their lawfully married same-sex spouse.
- An eligible employee may take FMLA leave to care for their step-child (child of the employee’s same-sex spouse).
- An eligible employee may take FMLA leave to care for a step-parent who is a same-sex spouse of the employee’s parent, regardless of whether the step-parent ever provided day-to-day care or provided financial support to the employee.
The new Rule still permits employers to require employees to provide reasonable documentation to confirm the marriage or family relationship. This documentation may take the form of the marriage license or court document, or a simple statement from the employee asserting that the family relationship exists.
About the Author
Mark A. McAnulty, a partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, practices labor and employment law, and is a member of the KDDK litigation and trial services practice team. Licensed to practice in Indiana, Kentucky, Illinois, and Missouri, Mark has represented clients in administrative and judicial proceedings throughout the tri-state area. Mark counsels clients regarding hiring and disciplinary issues, as well as compliance with local, state and federal employment laws. Mark also works with clients in reviewing and drafting employment contracts, non-compete agreements, and employee handbooks; and has advised and represented employers in labor management and union avoidance matters.