18
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h r t i p s
O
n February 25, 2015, the U.S. Department of Labor
(DOL) adopted new regulations that define the term
“spouse” for purposes of the Family and Medical Leave
Act of 1993. Under the regulations, which took effect on March
27, the term “spouse” includes all individuals in same-sex and
opposite-sex marriages, regardless of whether the states in which
those individuals reside and work recognize same-sex marriage.
On June 26, 2013, the U.S. Supreme Court issued its opinion in
United States v. Windsor
,
finding unconstitutional a provision of
the Defense of Marriage Act that defined “spouse” for purposes
of federal law to include only a “person of the opposite sex who
is a husband or a wife.”
As a result of
Windsor,
individuals in
same-sex marriages gained access to previously unavailable
federal benefits and protections, including FMLA benefits
for eligible employees.
FMLA is the principal federal law that provides job-protected
leave to certain employees who must be absent from work
for the purpose of addressing their own and certain family
members’ health conditions and specified purposes related to
military service. Among those family members whose medical
conditions or military service might entitle an employee to job-
protected leave is the employee’s spouse, who the statute defines
as “a husband or wife, as the case may be.”
Following
Windsor,
the DOL issued guidance on the definition
of “spouse” under the FMLA, which indicated that eligible
employees in a same-sex marriage who reside in a state that
recognizes their marriage may take FMLA leave to attend to
spousal medical and other needs.
With the DOL’s new regulations about to go into effect, however,
an updated rule will define who is a “spouse” for purposes of
FMLA. Under the new regulations, determination of who counts
as a “spouse” for FMLA purposes will be based upon the law of
the state in which a marriage is celebrated, rather than the state
in which the individuals seeking benefits reside. As a result,
beginning on March 27, 2015, eligible employees who have
been married in states that recognize same-sex marriages will
be entitled to utilize FMLA leave for spousal purposes whether
or not the states in which those employees reside or work also
recognize same-sex marriages.
Do’s and don’ts under the DOL’s new regulations
Although the DOL’s new definition of “spouse” will expand the
number of employees who may utilize FMLA leave to address
a spouse’s health or military duty issues, it is unlikely to cause
a sea change in FMLA leave. Spousal FMLA leave remains
available only to individuals who are lawfully married; it does
not apply to individuals in domestic partnerships or civil unions.
As a practical matter, however, many employers already extend
FMLA rights to individuals in same-sex marriages or domestic
partnerships without regard to the legality of same-sex marriage.
Nonetheless, as FMLA entitlements change, employers must take
care to ensure that the FMLA is administered in accordance with
the DOL’s new definition of “spouse.” One way to ensure that
both employees and management understand the implications
of this new definition is to incorporate into an existing FMLA
policy a definition for “spouse,” which explains that FMLA leave
for spousal purposes is available to eligible employees who have
been lawfully married in any jurisdiction. Additionally, employers
should clearly explain the manner in which employees may
request leave to care for a spouse and the types of documentation
that will be required for a FMLA leave to be approved.
Notably, FMLA permits employers to obtain reasonable
documentation of a spousal relationship.
In obtaining such
documentation, employers should take care to ensure that FMLA
programs are administered in an equitable, nondiscriminatory
manner. Especially in those jurisdictions that have enacted
protections for employees based upon sexual orientation,
employers that request documentation of a spousal relationship
should do so with all employees, regardless of whether the
spouse at issue is same-sex or opposite-sex.
The Family and Medical Leave Act now covers employees in same-sex marriages.
Here’s how to ensure compliance.
How Recent FMLA Changes Will Affect Restaurants
John J. Balitis and Kevin M. Green, April 2015
