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Same-sex FMLA spousal leave got you confused? Changes are coming.

Currently, same-sex spousal leave under the Family and Medical Leave Act (FMLA) is only available to employees who reside in a state that recognizes same-sex marriages. For example, an employee who validly entered into a same-sex marriage in one state, but now resides in a state that does not recognize same-sex marriages, would not be eligible for FMLA spousal leave even though the marriage is legally recognized in the state where it took place.

As you can imagine, determining whether an individual is a “spouse” based on the same-sex marriage laws of the state where an employee resides requires some employers to become familiar with multiple state laws. This is especially true here in the tri-state where many employers have employees who work in one state, but reside in another.

To further complicate matters in this area, Kentucky and Indiana are waiting on their respective federal appellate courts to rule on whether their same-sex marriage bans are unconstitutional, leaving uncertainty surrounding the legality of same-sex marriages in both states. This uncertainty makes it particularly complex for employers deciding whether to grant FMLA spousal leave to employees in same-sex relationships who reside in either Kentucky or Indiana.

Help is on the way . . .

The U.S. Department of Labor recently published a Notice of Proposed Rulemaking to revise the FMLA’s definition of “spouse.” The proposed rule would change the definition to look at the law in the state where the same-sex marriage took place. Thus, if the marriage was valid according to laws of the state where it took place, then the employee would be eligible for FMLA spousal protection, regardless of the state of residence. This simpler definition of “spouse” will reduce the administrative burden on employers that have a workforce that resides in multiple states.

Because this is only a proposed rule, it is subject to a comment period and possible revisions before being implemented. The comment period ends August 11, 2014, after which a finalized rule will follow.

If you have questions regarding the proposed rule or any other FMLA-related issues, please contact labor and employment law attorney Carrie Roelle at (812) 423-3183 or croelle@KDDK.com, or contact any member of the KDDK Labor and Employment Law Practice Team.

About the Author

Carrie Roelle

Carrie Roelle, an attorney at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the KDDK Labor and Employment Law Practice Team and the Litigation and Trial Services Practice Team. Carrie defends employers before state and federal courts, as well as various administrative agencies, in matters involving allegations of discrimination, harassment, interference, and retaliation. In addition to litigation, she participates in counseling employers on employment issues they face each day, including wage and hour compliance, disability issues, workplace policies, and litigation avoidance.

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