The U.S. Department of Labor has announced a proposed rule that would change the Family and Medical Leave Act’s regulatory definition of “spouse” so that an eligible employee in a legal same-gender marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides.
The long-anticipated rule change would revise FMLA’s definition of spouse in light of the U.S. Supreme Court’s decision in U.S. v. Windsor, 570 U.S. 12 (2013), which found section 3 of the federal Defense of Marriage Act to be unconstitutional. It adopts a “place of celebration” rule — in which the spousal status for FMLA purposes is based on the law of the state where the employee entered into marriage — rather than the current regulations’ “state of residence” rule (determined by the state in which the employee currently resides).
The Department proposes to define spouse as follows:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either: (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
DOL says it is “aware that the language surrounding marriage is evolving and that not all married individuals choose to use the traditional terms of husband or wife when referring to their spouse. The Department intends the proposed definition to cover all spouses in legal marriages as defined in the regulation regardless of whether they use the terms husband or wife.”
Same-gender FMLA Leave: From 19 States to 50 States
As of June 18, 2014, 19 states and the District of Columbia (in addition to 16 countries) extend the right to marry to both same-gender and opposite-gender couples. A place of celebration rule will allow all legally married couples, whether opposite gender or same gender, to have consistent federal family leave rights regardless of the state in which they reside.
The proposed definition of spouse expressly references the inclusion of same-gender marriages in addition to common law marriages, and will encompass same-gender marriages entered into abroad that could have been entered into in at least one state.
“A place of celebration rule will ensure that all legally married employees have consistent FMLA leave rights regardless of where they live,” says DOL.
The proposed change also would have some impact beyond spousal leave. The right to take FMLA leave to care for a child includes the right to take leave to care for a stepchild. Under the rule, an employee in a valid same-gender marriage would be able to take leave to care for a stepchild to whom the employee does not stand in loco parentisor the employee’s parent’s same-gender spouse who did not stand in loco parentis to the employee (step-parent).
U.S. Secretary of Labor Thomas E. Perez says the proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss.
“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
Advocates of fairness in the workplace and family-friendly policies applauded the decision to update the definition.
“The proposed rule recognizes that, no matter who you choose to marry, all spouses have a right to care for one another,” said Debra L. Ness, president of the National Partnership for Women & Families. “Recognizing that right strengthens the nation by bringing us closer to true marriage equality.”
Employer Takeaways
In response to the proposed rule, each employer should review the definitional change and determine what revisions are necessary to their policies, and update their handbooks or other leave-related materials to incorporate any needed changes.
Because FMLA leave is unpaid leave, the costs to employers resulting from this proposed rule change, DOL says, should be minimal. Anticipated increased costs include:
- regulatory familiarization;
- maintenance of preexisting employee health benefits during FMLA leave;
- administrative costs associated with providing required notices to employees, requesting certifications and reviewing employee requests and medical certifications; and
- making necessary changes to employer policies.
DOL estimates that, on an annual basis for employees in same-gender marriages, the proposed rule will result in: 5,800 new instances of FMLA leave taken to care for an employee’s same-gender spouse, stepchild, or stepparent; 460 new instances for qualifying exigency purposes; and 460 new instances for military caregiver purposes. In sum, 6,720 new instances of FMLA leave might be taken as a result of this proposed rule, according to DOL estimates.