Last week, the DOL issued a Final Rule regarding the definition of "spouse" under the Family and Medical Leave Act (FMLA) effective March 27, 2015. Employers and human resources consultants will want to be aware of the changes the Final Rule makes to prior guidance on the application of FMLA for same-sex spouses.
The Supreme Court overturned Part 3 of the Defense of Marriage Act (DOMA) in June 2013 setting the stage for various departments of the federal government that oversee specific regulations to determine how the court's ruling applied to the various regulations that were impacted by the decision. Prior to the DOMA decision, the Department of Labor had issued guidance that the rights afforded an employee for care of a same-sex spouse or the same-sex spouse of a parent relied on whether the state in which the employee resided recognized same sex marriage.
However, after the DOMA decision, other federal regulations were changed to recognize a same-sex spouse and the same-sex marriage based on the state of "celebration" - meaning that the couple had been legally married in a state or jurisdiction that recognized same-sex marriage regardless of where the couple now resides. Clearly, this dichotomy between other federal regulations and FMLA was a cause of confusion for employees and employers alike.
With the Final Rule, a same-sex spouse and the same-sex marriage are recognized under FMLA based on the state of celebration rule rather then where the couple resides. Consequently, an employee that entered into a same-sex marriage in any state or jurisdiction that recognizes same sex marriage has the same rights to FMLA as an employee that is married to an opposite-sex spouse. In addition to FMLA to care for the same-sex spouse, if an employee's parent is married to a same-sex spouse, that employee has the right to FMLA to care for that same-sex parent the same as an employee would have to care for an opposite-sex parent and the employee has FMLA rights to care for the child of their same-sex spouse the same as an employee has to care for the child of an opposite-sex spouse.
Finally, the Rule has imp[act for opposite sex couples, too, in that the Final FMLA Rule recognizes common law marriages and provides FMLA rights to an employee to care for the employee's common law spouse the same as if the couple was legally married.