RBS News

The Department of Labor (“DOL”) has announced that, effective March 27, 2015, all Family Medical Leave Act (“FMLA”) eligible employees in same-sex marriages are entitled to job-protected leave when their spouse has a serious health condition.

As a quick refresher, the FMLA requires private employers to provide an employee with 12 weeks of unpaid leave if: (1) they have 50 employees within 75 miles of the requesting employee’s worksite; (2) the employee started work at least 12 months prior to requesting leave and has worked at least 1,250 hours; and (3) the employee is confronted with a serious health condition, is caring for a family member with a serious health condition or is having/adopting a child.  During the 12 weeks of unpaid leave, employers must continue the employee’s health care coverage.

In August of 2013, the DOL revised the definition of “spouse” for purposes of interpreting the FMLA to include anyone considered a spouse under the laws of their home state.  This was the result of President Obama’s request that federal agencies revise their laws, rules, policies and practices in light of United States v. Windsor—the June 2013 decision in which the United States Supreme Court struck the federal definition of “spouse” that excluded individuals with a husband or wife of the same sex.

On Friday, February 27th, the DOL published a new definition of “spouse.”  Under the prior definition, individuals who lawfully married a same-sex partner in one state, but live in a state that does not recognize their marriage could not take FMLA leave to care for their ailing spouse.  The new definition will change this; same-sex spouses that wed in a state that recognizes their marriage as lawful may take FMLA leave to care for one another in the event of a serious health condition regardless of the law in their home state.

Employers should revise any written policies regarding FMLA leave to reflect this change and ensure administrators grant leave accordingly.

Should you have any questions regarding the above article or FMLA issues in general, please do not hesitate to contact Lynn Schonberg, Ryan Neumeyer, Nick Nykulak or Colleen Koehler at 216-447-1551.