The FMLA provides leave to care for serious medical conditions of certain family members including spouses. In the past, it was clear that a husband could take FMLA leave to care for his wife (assuming her condition met the requirements of the FMLA) and vice versa. But for same-sex couples, the answer to that question depended on the local state laws in which the couple resided. If the couple lived in a state that recognized same-sex marriages, then they would be eligible for FMLA leave. On the other hand, couples living in states which banned same-sex marriages would not FMLA rights. This is because of the definition of spouse in the FMLA regulations. That definition, found at 29 C.F.R. §825.102 had been as follows:
Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.
This means that if a same-sex couple got married in Illinois, and lived in St Louis (Missouri does not recognize same-sex marriages) the partners would not have FMLA leave rights.
The DOL has issued a Final Rule revising the definition of “spouse.” This new rule would change the definition of spouse to be defined by the “place of celebration.” As a result, the law of the place in which the marriage was entered, as opposed to the law of residence, would be used to define a “spouse” under the FMLA. That means that for the couple just described, the definition of spouse would be that used by Illinois, even if the couple is living in Missouri. Since Illinois recognizes same-sex marriages, the couple would have the right to FMLA leave.
This will effectively provide FMLA rights for all same-sex married couples no matter where they reside. So long as the couple was married in a state that recognizes same-sex marriage — and they would have to be in order to be married — the same sex spouses would have the same rights under the FMLA as heterosexual married couples.
The new rule goes into effect on March 27, 2015
UPDATE: A Texas Judge issued order on Thursday halting the enforcement of the new proposed rules as a result of a lawsuit filed by the Attorneys General of Texas, Arkansas, Louisiana and Nebraska. While the injunction only applies to certain states, it is unclear if the DOL will enforce the rule in those states not covered by the injunction.
If you are unsure if you are qualified to take FMLA leave, or feel that you have unfairly been denied FMLA leave, contact your local employment law attorney. The professional attorneys at Maduff & Maduff specialize in a variety of employment related issues. Whether your concern is overtime and wage theft, discrimination, or violation of your civil rights, we can help.