February 25, 2020

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FMLA Expanded To Include All Same-Sex Married Couples

Beginning on March 27, 2015, individuals in lawful same-sex marriages will be entitled to leave under the Family and Medical Leave Act (FMLA) to care for their same-sex spouses regardless of the state in which they reside.

The FMLA requires employers to give eligible employees up to twelve weeks of unpaid leave for the employee's own serious medical condition, or the serious health condition of a spouse, son, daughter, or parent.

Historically, same-sex married couples were not entitled to FMLA benefits because Section 3 of the Defense of Marriage Act (DOMA) limited the definition of "spouse" to persons of the opposite sex who are a husband or a wife. After the U.S. Supreme Court's 2013 decision in United States v. Windsor, the U.S. Department of Labor (DOL) interpreted the definition of spouse in the FMLA to include same-sex married couples domiciled in a state that recognized same-sex marriage. However, same-sex couples who lived in a state that did not recognize same-sex marriage were not eligible for FMLA leave to care for their same-sex spouse under this rule.

On February 23, 2015, the DOL announced that it now will utilize the "place of celebration" rule for purposes of determining FMLA eligibility for same-sex married couples. The new rule expands the definition of "spouse" to include all individuals in a same-sex marriage or common law marriage lawfully married in a state that recognizes same-sex marriages. The new rule does not apply to employees in civil unions.

With 37 states now recognizing same sex-marriages, the new rule will certainly ease the administrative burden on employers, allowing for uniform application of the FMLA to all legally married couples. Employers should review their employee handbooks and leave policies to ensure that they comply with the new "place of celebration" rule.

© 2020 Schiff Hardin LLP


About this Author

Lauren Novak Labor Law attorney, Schiff Hardin law firm, Chicago

Lauren S. Novak handles labor and employment law matters for clients in a diverse range of industries, including food and beverage, construction, gaming, manufacturing, outsourcing companies, educational institutions, and municipalities. Clients contact her to answer their day-to-day employment questions, review employee handbooks and employment policies, as well as to handle their more complex legal matters. Whether she is defending an unfair labor practice charge before the National Labor Relations Board, guiding employers through the union election process, or litigating a...