During the days of the Defense of Marriage Act (“DOMA”), an employer was not required to provide their employees with time off from work to care for their same-sex partner. As a result of the United States Supreme Court’s June 2013 decision in United States v. Windsor, however, one of the many meaningful impacts on marriage equality has been more inclusive employee benefits.
One such benefit is employee leave time under the Family Medical Leave Act “FMLA”, a federal law that requires certain employers to allow eligible employees to take leave, for certain qualifying reasons, including caring for their employees’ family members.
Effective March 27, 2015, the Department of Labor issued a Final Rule to amend the definition of “spouse” under the FMLA’s Regulations. The new definition will include all individuals in legal marriages, regardless of where they live. Specifically, the definition of “spouse” will include “husband” or “wife” as recognized in the state where the marriage took place, also known as “the place of celebration”, and specifically includes individuals in same-sex and common law marriages. Also, the Final Rule includes a marriage validly entered into outside of the United States, if it could have been entered into in at least one state. In guidance issued to explain its Final Rule, the Department of Labor explained that its focus on the “place of celebration” is intended to give all FMLA-qualifying employees “consistent FMLA leave rights regardless of where they live.”
In addition to the more inclusive definition of “spouse,” the Final Rule also clarifies caregiving needs.
Under the Final Rule, when an eligible employee’s parent has a same-sex spouse who is a stepparent by definition, the employee would be able to take FMLA leave to care for his or her stepparent, regardless of whether the stepparent ever actually acted as a parent to the employee. The Final Rule also provides that an eligible employee in a legal same-sex or common law marriage can take FMLA leave to care for his or her stepchild, i.e., the biological or adoptive child of the employee’s spouse. It is worth noting that, even before the Final Rule, the FMLA allowed and, after the Final Rule goes into effect, will still allow employees to take FMLA-qualifying leave to care for their foster children.
Whenever there is a new law or regulation, there is always some confusion about its implementation. If you have any questions, contact a knowledgeable employment attorney.
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.
