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More FMLA rights for same-sex couples

published in McAfee & Taft EmployerLINC Alert | February 24, 2015

By Charles S. Plumb

Under a new rule published yesterday by the Department of Labor (DOL), beginning March 27, 2015, same-sex couples will enjoy expanded Family and Medical Leave Act (FMLA) rights.

The FMLA provides eligible employees with job-protected leave for a number of family and health-related situations, including:

  • To care for a spouse suffering from a serious health condition;
  • To take exigency leave due to a spouse’s covered military service; and
  • To take military caregiver leave for their spouse.

FMLA_RightsAs the law stands now, in order for a same-sex couple to be entitled to FMLA leave, they must live in a state that recognizes same-sex marriages.

Under the new rule, employers should look to the state where their employee’s marriage occurred. After March 27, so long as the couple was married in a state that recognizes same-sex marriage, they are entitled to FMLA leave regardless of where they currently live. According to the DOL, this change is intended to make more consistent the treatment of same-sex couples under the FMLA. Presently, there are 37 states that allow same-sex marriages.

Other related issues to keep in mind:

  • The new rule applies to same-sex marriages. It does not apply to civil unions.
  • A common law same-sex marriage is covered if the marriage was validly entered into in a state that permits the formation of common law marriages.
  • The rule applies to the care of stepchildren or the care of a parent’s same-sex spouse.

Next steps for employers

With the March 27 effective date only four weeks away, now is a good time to alert your workforce of these impending FMLA changes. In addition, when reviewing requests for FMLA leave, employers have the right to require any eligible employee to provide reasonable documentation confirming a marriage or family relationship.