The Family Medical Leave Act (“FMLA”) requires covered employers to provide unpaid leave and reinstatement rights to eligible employees for specific health and family reasons, including family medical and military leave.
Among other things, the serious health condition, military care needs, or military exigencies of an employee’s “spouse” may be a qualifying event for FMLA leave and reinstatement rights.
Currently, the FMLA’s Regulations define “spouse” as “husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Under this definition, same-sex couples, lawfully married in the state where the marriage occurred, may be excluded from FMLA-protected spousal leave in their states of residence, depending upon the marriage laws of the states.
This morning, the Department of Labor (“the DOL”) announced its intent to publish a Notice of Proposed Rulemaking (“NPRM”) to broaden the definition of spouse, in consideration of United States v. Windsor, the landmark United States Supreme Court decision declaring unconstitutional the federal government’s ban on same-sex marriage. The most relevant features of the proposed rule are as follows:
- The DOL proposes to change the definition of “spouse” to include “an individual in a same-sex or common law marriage that was entered into in a state that recognizes such marriages”, regardless of the marriage laws of an employee’s state of residence.
- The proposed definition expressly includes same-sex marriages and encompasses same-sex marriages entered into outside of the United States that could have been entered into in at least one state within the United States.
- While Pennsylvania recently recognized same-sex marriages, common law marriages are no longer recognized by Pennsylvania. Under the NPRM, Pennsylvania employers may be required to extend FMLA spousal rights to employees in common law marriages entered into in states that still recognize them, but this is something we are still examining.
The process of accomplishing these goals has only just begun. The proposed rule must be published in the Federal Register, a daily publication of the federal government that may be viewed at the following website: https://www.federalregister.gov/public-inspection. Upon publication, the NPRM that appears in the Federal Register will specify dates for public comment, generally lasting 30-60 days. Interested parties may submit written comments on the proposed rule at www.regulations.gov. Only comments received during the designated comment period will be considered for the final rulemaking.
We will keep you updated on any new developments.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
