March 24, 2015

 Compliance Matters ™

Federal Government Extends FMLA Rights to More Same-Sex Married Couples 


 

The Obama administration has taken a huge step to protect the employment rights of same-sex married couples. Effective March 27, 2015, legally married same-sex couples will be able to enjoy the same rights as legally married opposite-sex couples under the Family and Medical Leave Act ("FMLA") even if the couple relocates to a state that does not recognize their same-sex marriage. This means that so long as the union was recognized as a legal marriage, these same-sex couples will be eligible to use FMLA leave to care for their spouse and family members, even in states that don't recognize same-sex marriages.

 

 Background

 

The U.S. Department of Labor ("DOL") adopted this groundbreaking "Final Rule" in response to the U.S. Supreme Court's recent decision in United States v. Windsor.  In Windsor, the Supreme Court struck down a provision in the federal Defense of Marriage Act ("DOMA"), defining "marriage" for purposes of federal law to mean only a legal union of one man and one woman. The DOL has now responded by amending the FMLA to come in line with this decision.

 

Under the FMLA's former "state of residence" rule, which had been in place since the 1990s, employees were not subject to FMLA protections if they entered into a legal same-sex marriage in one state but moved to or resided in another state that did not recognize the marriage. Under the new rule, the "state of residence" rule will be replaced with a so-called "place of celebration" rule which focuses on the legality of the marriage at the time of the marriage ceremony (celebration), rather than the law of the jurisdiction where the same-sex couple resides or works. So long as the state where the same-sex couple was married recognizes the marriage, the same-sex couple will be afforded all of the "spousal" protections and benefits of the FMLA regardless of where they live.

 

In addition, the Final Rule's definition of "spouse" was amended and now expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States, if they could have been entered into in at least one U.S. state.

 

            Practical Impact of The Rule Change

 

Under the FMLA, an eligible employee of a covered employer is permitted to take up to 12 weeks of job-protected leave in a 12-month period for a variety of reasons, including caring for the employee's spouse or family member who has a serious health condition. It also allows an eligible employee to take up to 26 weeks of leave in a 12-month period to care for a covered military service-member with a serious injury or illness, if the employee is the spouse, child, parent, or next of kin of the service-member.  As part of the FMLA framework, the regulations permit an employer  to require employees who take leave to care for a spouse (or other covered family member) to provide reasonable documentation of family relationship. However, employers should be careful not to request more or different types of documentation for same-sex, versus opposite-sex spouses, or to request proof of family relationship in the case of same-sex spouses when such proof is not required for opposite-sex spouses. Such differences in treatment could result in claims of unlawful discrimination, unlawful interference with the employee's right to take FMLA leave, or both.

 

According to the DOL, as of February 13, 2015, a total of 32 states and the District of Columbia have extended the right to marry to same-sex couples. Internationally, 18 countries permit same-sex marriage. For employees located in states that already recognize same-sex marriage, or whose particular state has a comparable leave law which recognizes same-sex marriages or extends marriage rights and protections to domestic partners (such as California)  these  new amendments will not have a significant impact on the administration of leave. But, organizations with FMLA-covered operations in states that do not currently recognize or allow same-sex marriage must now extend FMLA rights and obligations to employees if the marriage was legally consummated or recognized.

 

To ensure compliance with the new Final Rule, employers should:

  • Review FMLA policies and employee handbooks to ensure that any definition of "spouse" is consistent with the new regulation;
  • Provide training and updates to both supervisors and employees. It's especially important to educate supervisors about the nuances of these rules so they say the right thing when asked about the FMLA benefit. So-called FMLA "interference" and discrimination claims often arise from untoward interactions with supervisors who were not properly schooled on the employee's rights and the company's responsibilities; and
  • Ensure FMLA administration with respect to same-sex spouses is consistent with how leave is administered for opposite-sex spouses.

You may call your Firm contact if you wish to discuss any aspect of this article or wish to review whether your FMLA policies and practices meet the requirements of the law or need any other assistance. We can be reached at (818) 508-3700, or online at www.brgslaw.com.

 

Sincerely,


Richard S. Rosenberg
Katherine A. Hren
Rami A. Yomtov
BRG&S, LLP
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