Under The Family and Medical Leave Act (FMLA) eligible employees of covered employers are entitled to take unpaid, job-protected leave for specified family and medical reasons. This includes certain military family leave provisions which are also outlined under the Act.
The Department of Labor is getting close to publishing a Notice of Proposed Rule-making (NPRM) to revise the definition of spouse under the FMLA. This comes as a result of the United States Supreme Court’s decision in United States v. Windsor, where it was decided that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Amending the definition of “spouse” would allow eligible employees in legal same-sex marriages to take FMLA leave to care for their spouse or family member, regardless of where they live.
Highlights of the Areas to be Changed
- Proposal to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”);
- Proposed definition of spouse specifically references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State;
- “Spouse” is proposed to be defined as follows: Spouse, as defined in the statute, means a husband or wife. For purposes of the 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.
Impact of the Proposal
The proposed change to the definition of “spouse” would mean that eligible employees, regardless of where they live, would be able to:
- Take FMLA leave to care for their same-sex spouse with a serious health condition
- Take qualifying exigency leave due to their same-sex spouse’s covered military service, or
- Take military caregiver leave for their same-sex spouse
Although the Office of Management and Budget (OMB) has reviewed and approved the Notice of Proposed Rule-making, that document has not yet been published in the Federal Register. Once the NPRM appears in the Federal Register public comment dates will be indicated. It is during these public comment periods that interested individuals are invited to submit written comments on the proposal. Compliance Poster Company’s (CPC) HR Research and Compliance Team will be watching this closely. Updates will be posted on the CPC blog site.