It has been almost two years since the U.S. Supreme Court overruled Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Until that time, certain entitlements of the Family Medical Leave Act (FMLA) were only available to opposite-sex married couples. Same-sex married couples are only eligible for FMLA entitlements if the state where the couple resides allows same- sex marriages. That changed on March 27, 2015.
Same-sex married couples will be treated the same under the FMLA as opposite-sex married couples. In the final rule issued February 25, 2015 and effective March 27, 2015, the definition of spouse will be determined by the “place of celebration” where the marriage was entered. Most federal agencies had already adopted the place of celebration rule including ERISA and the Internal Revenue Code that affected employee benefit plans.
All legally married couples, whether opposite-sex or same-sex, or married under common law (in states which allow marriage without binding documents at a public ceremony) have consistent access to family leave rights under the FMLA. The Department of Labor estimates this change will result in more than 8000 additional instances of FMLA leave.
Employers need to communicate this rule to anyone who is involved in the leave management process as well as employees.
Review your FMLA policy, forms and procedure to make sure the term spouse is defined properly. Clarify whether your company provides additional FMLA benefits which are not required by law, such as domestic partnerships. Review any recent leave requests or denied leaves due to the definition of a spouse.
Employers have the right to require employees to provide documentation confirming the family relationship. However, employers are not required to request documentation and the documentation may be as simple as a written statement attesting to the relationship. Also beware that employers cannot use the request of this information to interfere with the employee’s FMLA rights. Do you require opposite-sex married couples to provide this documentation? Have you gathered this information elsewhere? Play it safe and keep the workplace fair.
Spousal status FMLA rights include taking leave to care for the spouse with a serious health condition; qualifying exigency leave and military caregiver leave of the spouse; leave for the child of the spouse, even if the employee is not taking on a parental role; and leave for the spouse’s parent or stepparent.
This is cause to celebrate. FMLA is a federal law and this rule removes an unnecessary hurdle. Removing unnecessary obstacles to create and maintain fair workplace is the right thing to do.
What employers should do:
Communicate this information to all employees and anyone who has any part in the leave management process. Review your FMLA policy, forms and procedure to make sure spouse is properly defined. Review any recent requests that may be impacted by this Final Rule. FMLA Tip: Retrieve your forms from the DOL website.