DOL Clarifies Scope of Same-Sex Spouse FMLA Rights
Provided by Larry Grudzien
The Department of Labor (DOL) recently revised guidance on its website to confirm that same-sex spouses may be eligible for FMLA leave to care for a seriously ill spouse or for activities related to a spouse’s military deployment. The guidance does not modify the rule set out in current FMLA regulations that status as a spouse is determined under the laws of the state in which the employee resides. Thus, until new regulations are issued, employers are only required to make FMLA leave available to employees who live in states that recognize same-sex marriage.
On Friday, August 9, 2013, the DOL updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act posted on its website to confirm that a spouse – for purposes of the FMLA – includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides. Thus, lawfully married same-sex couples who live in a state that recognizes same-sex marriage will be entitled to up to 12 weeks of leave in a 12-month period to care for a seriously ill spouse or for activities that arise in connection with a military spouse’s deployment, and up to 26 weeks of caregiver leave for a military spouse who is seriously injured or ill, if they are otherwise eligible for FMLA leave. However, employers would not be required to make FMLA leave available to a same-sex spouse who resides in a state that has its own DOMA law and doesn’t recognize same-sex marriage.
The new guidance clarifies the scope of an employer’s obligation to make FMLA available to same-sex spouses.
To review the DOL Fact Sheet #28F, please click on this link: http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf