3 Things You Should Know About the New FMLA Rule for Employees in Same-Sex Marriages

The Department of Labor (DOL) released a new rule, effective March 27, 2015, redefining spouse to include same-sex married partners under the Family Medical Leave Act (FMLA). The DOL acted in conformance with the Supreme Court’s decision in United States v. Windsor, which held parts of the Defense of Marriage Act unconstitutional. Here’s what it means for employers:

1. Even if your employee is in a state that does not recognize same-sex marriage, his or her same sex spouse may still be characterized as a “spouse” under FMLA. What matters is that a couple’s marriage is valid where it was celebrated, not where the employee lives (this is different from the prior rule).
2. The same applies for couples married in a foreign country. If the marriage was legal where the couple got married and it could have taken place in at least one state in the union, then the couple are considered spouses.
3. This means that, when an employee requests FMLA for a same-sex spouse, step-child, or step-parent through his or her same-sex spouse, the employee is entitled to FMLA leave if the marriage is legal where the ceremony took place.

Iowa recognizes same-sex marriage. The status in Nebraska is in flux. A federal District Judge recently struck down Nebraska’s ban on same-sex marriages. However, the Eighth Circuit Court of Appeals stayed the ruling on March 6, 2015. A similar process is playing out in South Dakota. A South Dakota federal judge found the state’s ban unconstitutional, staying her ruling until the Eighth Circuit decides the issue. The Eighth Circuit will hear oral arguments for both cases in May of 2015.

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