The Family and Medical Leave Act (FMLA) allows eligible employees to take job-protected leave from work to care for a spouse with a serious health condition. The FMLA guidelines define “spouse” as a husband or wife as defined by the employee’s state of residence. Same-sex marriages are only lawful in New York, the District of Columbia, California, Connecticut, Oregon, Pennsylvania, New Mexico, Hawaii, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, Rhode Island, Vermont, and Washington. Consequently, employees who reside in states not recognizing same-sex marriage are not entitled to FMLA leave to care for their same-sex spouse. A Cincinnati FMLA lawyer can explain how Ohio same sex couples might be affected by the FMLA.
- The Celebration Rule
However, on June 20, 2014, the Department of Labor (“DOL”) announced a proposed “Celebration Rule” revising the FMLA’s definition of “spouse”. The Celebration Rule’s proposed definition of spouse expressly references the inclusion of same-sex marriages, common law marriages, and same-sex marriages entered into abroad that could have been entered in at least one state. The Celebration Rule also proposes determining spousal status by the law of the state the employee was married, as opposed to the state in which the employee resides. For example, if an employee is married in New York, but not residing with his same-sex spouse in a state which does recognize same-sex marriage, the employee will be entitled to FMLA leave to care for his same-sex spouse as if he had resided in New York.
- What’s Next?
From June 27, 2013 until August 11, 2014, the public was given the chance to provide comments on the DOL’s proposed Celebration Rule. If the Celebration Rule becomes a reality, covered employees in all fifty states will be able to:
- Take FMLA leave to care for their same-sex spouse;
- Take exigency leave due to their same sex spouse’s military service; and
- Take military caregiver leave for their same-sex spouse.
- Increasing Rights For Same-Sex Couples
On June 26, 2013, the United States Supreme Court ruled in United States v. Windsor that the federal Defense of Marriage Act (DOMA), which defines spouse as “a person of the opposite sex who is husband or a wife”, was unconstitutional. As a result of the Windsor ruling, married same-sex couples in the States and the District of Columbia where such unions are legally recognized are eligible for equal benefits under numerous federal laws and programs, including the FMLA. Since Windsor, the DOL has advocated for allowing same-sex married couples to enjoy the same federal benefits and obligations as other married couples, regardless of where they live. For example, on September 2013, the DOL took the position that the definition of “spouse” in Title I of ERISA “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live”. The Celebration Rule is the DOL’s next step in securing equality for same-sex couples.
A Cincinnati FMLA lawyer at Robert A. Klingler Co., LPA can help explain and defend the rights of same sex couples for medical leave under the Family and Medical Leave Act.