FMLA Leave Expanded to Same-Sex Spouses

Pursuant to a new Department of Labor (“DOL”) rule, employees in legal, same-sex marriages will soon have the same rights as employees in opposite-sex marriages to federally-protected job leave under the Family and Medical Leave Act (FMLA).  

The final rule changing existing policy under the FMLA will take effect on March 27. Currently, 37 states and Washington, D.C. recognize same-sex marriages. 

The final rule changes the definition of a spouse under FMLA regulations from a “state of residence” rule to a “place of celebration” rule. In sum, if the place where the employee was married recognizes same-sex marriages as legal, the employee is entitled to take FMLA leave to care for his or her spouse or family member, regardless of where he or she currently resides.

In addition, the final rule expressly includes within the definition of spouse individuals in marriages that were validly-entered into outside of the United States, if they could have been entered into in at least one state. 

All employers, including Michigan employers, must understand that available rights under the FMLA now extend to all eligible employees in same-sex and common-law marriages, regardless of the current status of Michigan’s (or the employer’s particular state’s) marriage laws.

In addition, employers should update their current FMLA policies to ensure they are congruent with the Final Rule prior to March 27, 2015. 

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