Same Sex Spouses and FMLA

After the Supreme Court’s 2013 decision in United States v. Windsor struck down Section 3 of the Defense of Marriage Act, the Department of Labor announced a change to their definition of spouse under the FMLA to allow eligible employees FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognizes same-sex marriage. At that time, the DOL defined a spouse as: “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” Because the DOL limited this rule only to states that recognized same-sex marriage, states such as Texas were exempt from the FMLA rule change because Texas state law did not recognize such unions.

However, the DOL has now moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. As such, this new rule looks only to the state where the same-sex couple entered into their “marriage” and ignores the law of the state where the couple currently resides. As a result of this change, eligible employees, regardless of where they live, will be able to: take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition; take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service; or take military caregiver leave for their lawfully married same-sex spouse. This also allows FMLA leave related to stepchildren of a same-sex spouse.

This rule is not in full effect in Texas, yet. On March 26, 2015, one day before the effective date for the Final Rule, the United States District Court for the Northern District of Texas, in Texas v. United States, Civil Action No. 7:15-cv-00056 (N.D. Tex.), granted a request made by the states of Texas, Arkansas, Louisiana and Nebraska for a preliminary injunction with respect to the Department’s Final Rule revising the regulatory definition of spouse under the FMLA. This case will have to work its way through the court system before Texas employers are required to follow FMLA rules regarding same-sex marriage (unless otherwise required by law). Given the current swing of court decisions, it seems that it will only be a matter of time before this becomes the law in Texas, so employers should begin planning.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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