Proposed Rule Expands FMLA Protections to Same-Sex Couples

Victoria Cleveland, Government Relations Intern

LGBT, 2013, Equal Marriage
NOW rally at the U.S. Supreme Court, June 2013

Good news for same-sex couples! The Department of Labor (DOL) announced a proposed rule that would extend the definition of the word “spouse” with regard to the Family Medical Leave Act (FMLA) to include same-sex couples working in states that do not recognize their marriage. The FMLA protects employees who take a leave from work for family and medical reasons, including caring for a spouse with a serious health condition.

Currently, the FMLA operates under a “state of residence” standpoint, so that the term “spouse” applies only to same-sex married employees working in states where those marriages are recognized. However, once this proposed rule is finalized, the DOL will take a “state of celebration” position and only require that the marriage be valid in the state in which it was performed.

“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,” said U.S. Secretary of Labor Thomas E. Perez.

This proposed rule would update the change made in August 2013 which extended the protections of FMLA to same-sex spouses, provided that they live in a state that recognizes their marriage. This expansion of eligibility followed the Supreme Court’s decision in United States v. Windsor (2013) which found Section 3 of the Defense of Marriage Act unconstitutional.

The change to a “state of celebration” position emulates the DOL’s Technical Release issued in September of 2013 with regard to the Employee Retirement Income Security Act of 1974. The release stated that, in light of Windsor, the definition of “marriage” and “spouse” would include same-sex couples married in any state that recognized such marriages, regardless of the laws of the state in which they live.

The proposed rule was open for comment by the public until August 11, and the final ruling is expected soon.

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