HR Minute

It’s Not Where You Live, But Where You Were Married: FMLA Expands Coverage for Same-Sex Couples

FMLA Expands Coverage for Same-Sex CouplesAs of March 27, 2015, the definition of “spouse” under the Family and Medical Leave Act (FMLA) will  include an FMLA-eligible employee in a legal same-sex or common law marriage--even though the marriage may not be recognized in the state where the employee lives or works. Yes, you read that right…even though the marriage may NOT be recognized in the state where the employee lives or works! The new rule allows a same-sex spouse to be considered a “spouse” for FMLA purposes if the marriage was valid where and when it was entered into, i.e., “celebrated.

Under the old rule, an employee could only take FMLA-protected leave to care for a same-sex spouse if the employee lived in a state that recognized same-sex marriages. (To date, only 37 states and the District of Columbia have legalized same-sex marriage.) The new “place of celebration” rule offers consistent federal leave rights across the country to all lawfully married couples, whether of the opposite sex, same-sex, or married under common law.

Additionally, the FMLA definition will recognize any marriage legally consummated abroad, so long as the marriage could have been legally consummated in at least one state in the United States.

The new rule permits an FMLA-eligible employee in a qualifying same-sex marriage to:

  • Take FMLA leave to care for a same-sex spouse with a serious health condition;
  • Take qualifying exigency leave due to same-sex spouse’s covered military service;
  • Take military caregiver leave to care for a same-sex spouse;
  • Take FMLA leave to care for the child of same-sex spouse (stepchild) with a serious health condition; and
  • Take FMLA leave to care for the same-sex spouse of the employee’s parent (stepparent) with a serious health condition.

Employers should ensure that supervisors, HR personnel, and FMLA coordinators are knowledgeable about the new “place of celebration” rule to avoid the wrongful denial of newly-valid leave requests. Employers should also review and revise, as needed, their FMLA policies to ensure compliance with the expanded coverage.

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