On February 25, 2015, the United States Department of Labor (“DOL”) published a Final Rule (“Final Rule”) that modified the definition of “spouse” under the Family and Medical Leave Act of 1993 (“FMLA”) to include same‑sex marriages. As explained in greater detail below, the DOL’s Final Rule goes into effect nationwide, even in states that do not currently recognize same-sex marriages. Because this Final Rule goes into effect on March 27, 2015, employers must act immediately to revise their policies to comply.
What Does The FMLA Require?
Before delving into the specifics of the Final Rule, it is important to review the basic rights employees enjoy under the FMLA. Employees eligible under the FMLA can receive up to 12 weeks of unpaid, job‑protected leave per year for certain family and medical reasons. These reasons include the birth of a child, placement of a child for adoption or foster care, an employee’s serious health condition (as well as such conditions of a spouse, child, or parent), and certain military‑related events (also known as “qualifying exigency leave”). The FMLA allows up to 26 weeks of unpaid, job‑protected leave per year to employees who have a spouse, child, parent, or next of kin seriously injured during military service.
Not all employees, however, are eligible for FMLA. To be eligible for FMLA at a private sector company, an employee must have worked for the employer for at least 12 months. These months, however, do not have to be consecutive. The employee also must have worked for the employer for at least 1,250 hours in the prior 12 consecutive months. Finally, the employee must work in a location with 50 or more employees within a 75‑mile radius.
What Caused The DOL’s Revision?
The DOL’s revision of its definition of “spouse” is a direct byproduct of the United States Supreme Court’s decision in United States v. Windsor. In Windsor, the Supreme Court reviewed the legality of Section 3 of the Defense of Marriage Act (“DOMA”), a federal law which limited the definition of marriage to a legal union between a man and a woman as husband and wife. Its express purpose was to preclude same-sex marriages from receiving any benefits under laws passed by Congress and regulations adopted by federal administrative agencies.
On June 26, 2013, the Court issued its decision in Windsor striking down Section 3 of DOMA and holding, in part, that the law violated individuals’ rights to due process and equal protection of the laws. After the Windsor decision, President Barack Obama instructed all federal agencies to determine if federal benefits programs should be expanded as a result. At that time, the DOL announced that it would recognize same‑sex marriages for purposes of the FMLA, provided the same-sex couple resided in a state that recognized such marriages as legal.
As of the writing of this article, 37 states recognize same‑sex marriage. This includes North Carolina, pursuant to the October 10, 2014 decision of the United States District Court for the Western District of North Carolina in General Synod of the United Church of Christ v. Resinger. In that case, the District Court declared that North Carolina’s constitutional amendment banning same‑sex marriage violated the United States Constitution. Thirteen states, however, do not yet recognize same‑sex marriage, an issue that the DOL’s New Rule expressly intended to address.
How Does The New Rule Define “Spouse”?
Prior to the New Rule, the DOL used a “state of residence” rule to define “spouse” under the FMLA. In other words, an employer would look to its own state’s marriage laws to determine if an employee claiming FMLA leave actually had a “spouse.” This construction, however, posed hurdles for individuals in same‑sex marriages, because they could be legally married in one state but then reside in a states that does not recognize such unions as legal. Under the “state of residence” rule, these individuals would not be considered spouses.
The New Rule replaces the “state of residence” standard with a “state of celebration” standard. When the New Rule goes into effect, employers evaluating whether an employee requesting FMLA leave has a spouse will need to determine if the marriage is valid under the law of the state in which the couple was married. If so, the employee would be entitled to FMLA leave for his or her spouse even if the couple resides in a state that does not recognize same-sex marriages. For example, if a homosexual couple was married in Hawaii (where such unions are legally recognized), but now resides in Arkansas (where same‑sex marriage currently does not have legal recognition) and one of these individuals develops a serious health condition under FMLA, the other spouse can take FMLA leave (assuming all other requirements of FMLA are met).
What Must Employers Do To Comply? And Why Is It Important To Do So?
This definitional change has a significant impact on implementation of private employers’ FMLA policies and programs. In order to stay compliant with the FMLA, employers must revise their FMLA policies before March 27, 2015 to incorporate the DOL’s new definition of “spouse” for purposes of the FMLA’s spousal provisions related to serious health conditions, military caregiver leave, and qualifying exigency leave. The new definition of “spouse” will also impact leave taken for a spouse’s stepchild or stepparent, even if the other spouse does not meet the in loco parentis standards for either situation. Pursuant to the “state of celebration” rule, employers must also audit and adjust their FMLA procedures so that they can efficiently identify where an employee’s marriage occurred, determine the legality of the marriage in that state, and determine if the employee legally qualifies as a “spouse.”
Actual revision of written FMLA policies is important. The DOL asks for a copy of an employer’s FMLA policy in the majority of its investigations, even if the focus of its investigation is on wage‑and‑hour issues unrelated to FMLA. Thus, employers subject to FMLA have significant reasons for ensuring that their FMLA practices and policies are in conformity with current law even if a same‑sex marriage situation has not occurred and is not likely to occur in the near future.
Employers would also be well advised to monitor the United States Supreme Court’s upcoming decisions in four separate cases challenging the legality of states’ same‑sex marriage bans. The decisions, expected before the end of June, have the potential to either expand or narrow the DOL’s definition of “spouse.”
