March 26, 2019

March 26, 2019

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March 25, 2019

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DOL (Department of Labor) Proposes Change to FMLA (Family Medical Leave Act) Definition of Spouse to Accommodate Same-Sex Marriage

As was expected, the U.S. Department of Labor has issued a proposed regulation changing the definition of “spouse” for FMLA purposes in order to protect the FMLA rights of employees with same-sex spouses.

The proposed regulation adopts a “place of celebration” rule, consistent with the current DOL interpretation in the context of other federal laws.   Under this “celebration” rule, an employee may take FMLA leave to care for an ill same-sex spouse even if they couple resides in a state that does not permit or recognize their marriage, as long as they were married in a jurisdiction that allowed their marriage.

This change was necessary to accommodate employees with same-sex spouses because the current FMLA definition refers to the state of an employee’sresidence when determining whether the employee is married.  Under that definition, an employee technically is entitled to take FMLA leave to care for an ill same-sex spouse only if they actually reside in a state that recognizes same sex marriage.

The DOL issued Frequently Asked Questions and a Fact Sheet along with the proposed regulation.

© 2019 Proskauer Rose LLP.

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About this Author

Stacey Cerrone, Labor and Employment Attorney, Proskauer Rose Law FIrm
Senior Counsel

Stacey C.S. Cerrone is a senior counsel in the Labor & Employment Law Department, where she focuses her practice on ERISA litigation and labor and employment law.

Stacey represents plan sponsors, plans, directed trustees, and fiduciaries in all phases of litigation and mediation involving all aspects of ERISA, including: class actions and individual claims relating to ERISA's fiduciary duty and prohibited transaction provisions; denials of claims for benefits; church plans, severance plans; ERISA Section 510; retiree benefits; ERISA...

504.310.4086
Russell L Hirschhorn ERISA Litigation, employee benefits attorney, Proskauer
Senior Counsel

Russell Hirschhorn is a Senior Counsel in the Labor & Employment Law Department, where he focuses on complex ERISA litigation and advises employers, fiduciaries and trustees on ERISA benefit and fiduciary issues. 

Russell represents employers, plan sponsors, plans, trustees, directed trustees and fiduciaries in all phases of litigation, arbitration and mediation involving employee benefits, including class action and individual claims relating to ERISA’s fiduciary duty and prohibited transaction provisions, denials of claims for benefits, severance plans, ERISA Section 510, retiree benefits, ERISA preemption of state law claims, plan investment losses, cash balance plan conversions, plan amendments or terminations, withdrawal liability, and employer contributions to multiemployer funds

212.969.3286