Family and Medical Leave Act update expands same‑sex protections

Q&A with Charlie Plumb

published in The Oklahoman | February 27, 2015

Shortly after the U.S. Supreme Court struck down a key section of the Defense of Marriage Act (DOMA) as being unconstitutional, the U.S. Department of Labor updated its regulations to extend job-protected Family and Medical Leave Act to some, but not all, same-sex spouses. Just this week, the DOL announced further updates that would provide leave benefits to even more employees with same-same spouses. Labor and employment attorney Charlie Plumb was interviewed by The Oklahoman about the rule change.

Under current DOL guidelines, FMLA leave is available to eligible employees with same-sex spouses based on the state of their current residence, not the state in which they were married, explained Plumb, As a result, employees who are married in state that recognizes same-sex marriage but then move to a state that does not are not entitled to job-protected leave.

“Just this week, the Labor Department updated its rule to provide leave to any employee who holds a marriage license from a state that recognizes same-sex marriage, regardless of where they currently live,” said Plumb.

The new rule, which goes into effect March 27, 2015, is intended to make the treatment of same-sex couples more consistent under the FMLA. The change is also consistent with the way same-sex couples are treated for federal tax and ERISA Title I purposes.