Be Prepared to Change Your FMLA Practices for Married Same-Sex Partners

Kegler Brown E-mployment Alert

Everyone knows that an employee is entitled to take leave from work if their spouse or child, including a stepchild, suffers from a serious health condition under the Family and Medical Leave Act (FMLA). So, what's new? What's new is that the definition of a "spouse" and a "child" is going to change and everyone needs to be aware of it.

At present, the Department of Labor Regulations define a "spouse" as a "husband or wife as defined or recognized under state law in the state where the employee resides." That's pretty clear in Ohio because by the state Constitution, Ohio does not recognize same-sex marriages. And, since the definition of a spouse hinges on the state where the employee lives, a same-sex marriage (no matter where it is performed) is of no consequence for an employee living in Ohio. For that reason, an Ohio employee has no right to take FMLA leave if his or her same-sex spouse is ill.

All of that is about to change. The change has been sparked by the U.S. Supreme Court's decision in U.S. v. Windsor, where the Court held that the federal Defense of Marriage Act that defines a spouse in a legal marriage as one between "one man and one woman," to be unconstitutional for federal law purposes.

Now, the Department of Labor has issued a Notice of Proposed Rulemaking, which will change the FMLA regulations and the definition of spouse. Under the new rule, which surely will be adopted after the obligatory comment period ends, a "spouse" will be decided by the "place of celebration" rule. That is, if the marriage is valid in the state in which the marriage occurred, it will be treated as valid anywhere for FMLA purposes.

So, if an Ohio employee travels to another state and gets married to a same-sex partner, and the same-sex marriage is legal in the other state, the marriage will be considered legal upon their return to Ohio.

That means that in that circumstance, the employee will be entitled to FMLA leave for a serious health condition of their same-sex spouse. Likewise, the employee will be entitled to FMLA leave to care for their spouse's child by virtue of being a stepparent (even if they do not stand in loco parentis).

The new rules are not effective yet. But they will be shortly. Be prepared to make the changes.