Same-Sex Couples Now Receive Equal Coverage Under The FMLA

On Friday, March 27, 2015, the Department of Labor (“DOL”)’s new regulation revising the definition of “spouse” to include those in same-sex marriages went into effect expanding the definition of spouse under the Family and Medical Leave Act of 1993 (“FMLA”). With the reversal of the Defense of Marriage Act (“DOMA”) by the U.S. Supreme Court in United States v. Windsor, President Obama instructed all federal agencies to determine if federal benefits programs should be expanded as a result. Consequently, on February 25, 2015, the DOL published a Final Rule (“Final Rule”) which amended the regulatory definition of spouse under the FMLA to include all individuals in legal marriages, regardless of where they live thus ensuring that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.  Prior to the New Rule, the DOL used the “state of residence” rule, which required the employer to look to its own state’s marriage laws to determine if an employee claiming FMLA leave actually had a “spouse”.  Thus, same-sex couples who were married in a state where the union was legal, but resided in a state that does not recognize same, these individuals would not be considered spouses under the old standard. Under the new “place of celebration” standard, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages.  The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.  Thirty-Seven (37) states currently recognize same‑sex marriage, while thirteen (13) states do not yet recognize the union. It is important to note that the new regulatory definition of spouse does not substantively alter the FMLA.  For example, it does not change the eligibility requirements or an employee’s entitlement to take up to 12 workweeks of FMLA leave in a 12-month period, or what types of employers are covered by the FMLA.  All requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must be met.  The revised definition also expands the right of both parents to utilize FMLA leave for the birth or adoption of their child.  Under the previous language, these rights were limited to the “mother” and “father”, limiting this option to partners in a heterosexual marriage. As expected, not all states have agreed with this change. On March 26, 2015, the United States District Court for the Northern District of Texas, granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to DOL’s Final Rule.  The Texas Attorney General, Ken Paxton, who was joined by the Attorney Generals for Nebraska, Arkansas, and Louisiana, was able to show a likelihood of prevailing on his claim that a change in the federal law’s definition of spouse would force Texas employers to choose between breaking federal or state laws.  U.S. District Judge Reed O’Connor ultimately agreed with the coalition of states in finding that the agency was exceeding its authority in changing the Final Rule.  In his opinion, Judge O’Connor stated his belief that Congress “intended to preserve a state’s ability to define marriage in this way without being obligated under the laws of another jurisdiction which may define it differently.” Takeaway for Employers:

• Given the injunction, a great deal of uncertainty surrounds the DOL’s Final Rule with additional court rulings expected in the coming months.  A recent posting on the DOL’s website about the decision provides no clear answers.
• In the interim, the best approach for those employers operating in New York and New Jersey is offer FMLA benefits to employees in same-sex marriages who qualify for leave under the DOL's new definition of spouse.
• Continue to follow our blog and the DOL’s website www.dol.gov for further developments.

For questions related to compliance with the FMLA, please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at dmastellone@genovaburns.com, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at eaddison@genovaburns.com.