The U.S. Department of Labor recently announced that the definition of “spouse” for purposes of the Federal Family and Medical Care Leave Act (FMLA) has been expanded to include same sex partners.
In brief, the FMLA (and the California equivalent – California Family Rights Act or CFRA) provides that an “eligible employee” who works for a “covered private employer” is entitled to take up to 12 weeks off of work for a “qualifying event”.
For purposes of the FMLA, the following definitions apply:
• Covered Employer: A private employer, employing 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year.
• Eligible Employee: Employees are eligible for FMLA if they have worked for a covered employer and have worked for 12 months (need not be consecutive) and 1,250 hours in the 12 months prior to the need for leave.
• Qualifying Event:
• The employee’s own serious health condition (FMLA/CFRA)
• A qualifying exigency relating to a close family member’s military service (FMLA only)
• Up to 26 weeks per 12-month period to care for an ill or injured servicemember (FMLA only)
• Pregnancy-related disability (FMLA only) (California law also provides additional time for a pregnancy related disability under the Pregnancy Disability Leave (PDL) laws)
• Bonding with a newborn, an adopted child or a child placed in foster care with an employee (FMLA/CFRA or CFRA only)
• Caring for a family member (parent, child, spouse) with a serious health condition (FMLA/CFRA)
• Caring for a registered domestic partner with a serious health condition (CFRA only)
The U.S. Department of Labor recently announced that the definition of “spouse” for purposes of FMLA leave is expanded to include those in “legal, same-sex marriages”.
Specifically, the announcement states:
Workers in legal, same-sex marriages, regardless of where they live, will now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act (FMLA) to care for a spouse with a serious health condition. The U.S. Labor Department announced a rule change to the FMLA today in keeping with the U.S. Supreme Court ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.
The rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.
The rule change is effective March 27, 2015. For additional information on the FMLA revisions, including a fact sheet and frequently asked questions, go to: http://www.dol.gov/whd/fmla/spouse/.
What Should You Do Now?
Employers should be sure to review their Employee Handbook and update the policy to reflect the policy change to include the new definition of spouse.