U.S. Department of Labor Announces Final Family and Medical Leave Act Rule

March 5, 2015

As anticipated, on February 25, 2015, the U.S. Department of Labor (DOL) announced a Final Rule that requires all covered employers to provide Family and Medical Leave Act (FMLA) leave to legally married same-sex spouses, even if their home state does not recognize same-sex marriages. This is the latest move by a federal agency to implement the U.S. Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act's definition of marriage under federal law as the union between one man and one woman.

The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons. This includes, among other things, leave to care for a spouse with a serious health condition and leave to attend to certain exigencies caused by a spouse's call to active military duty. Previously, the regulatory definition of "spouse" did not include same-sex spouses if an employee resided in a state that did not recognize same-sex marriages. Under the new rule, whether an employee is a spouse for FMLA purposes is determined by the law of the state in which the marriage was entered into, as opposed to the law of the state in which the employee resides. In addition, employees who were legally married in a country that recognizes same-sex marriage will be covered if their marriage would be legal in at least one U.S. state. Ultimately, employees in legal, same-sex marriages, regardless of where they live, will now be entitled to the same FMLA rights as those in opposite-sex marriages.

The Final Rule takes effect March 27, 2015. In preparation for the rule change, employers should review all employee handbooks and FMLA policy materials, as well as FMLA administration processes, to ensure they are in compliance with evolving federal and state laws. By the DOL's count, same-sex marriages are now recognized in 32 states and the District of Columbia.

The labor and employment attorneys at Lewis Rice represent and advise employers in all aspects of labor relations, including Title VII, the ADA, the ADEA, ERISA, the FMLA, the PDA, state anti-discrimination statutes, and various state law theories such as wrongful discharge claims and non-competition disputes.

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