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Can Employees Use FMLA Leave to Care for Their Same-Sex Spouses?

Employment & Labor Legal Update

The U.S. Department of Labor has issued a change to its Family Medical Leave Act (FMLA) rules that will affect an employer with an employee in a same-sex marriage caring for an ill spouse. This revision will allow an employee whose same-sex spouse has a serious health condition to take job-protected FMLA leave to care for the spouse, regardless of whether the law of the state in which the employee resides recognizes that employee’s same-sex marriage. Previously, the FMLA rules provided FMLA leave for a same-sex spouse only if the law of the state in which the employee resided recognized same-sex marriage.

DOL’s new rule defines spouse based on the law of the state in which the marriage ceremony was performed; thus, it recognizes same-sex marriage without regard to the law of the employee’s state of residence. The department is basing its rule change on the Supreme Court’s ruling in United States v. Windsor that declared unconstitutional the federal Defense of Marriage Act that prohibited federal laws from recognizing state same-sex marriage laws.

This rule was set to go into effect on March 27, 2015. However, on March 26, 2015, a federal court judge in Texas ordered DOL to stay the application of the rule in response to a challenge brought by the Texas Attorney General’s Office, which was joined by the state Attorneys General of Arkansas, Louisiana, and Nebraska. These state Attorneys General allege DOL’s rule change infringes on state sovereignty, violates the U.S. Constitution, and forces employers operating in states that do not recognize same-sex marriage into the dilemma of either violating federal regulations by not providing FMLA leave for the care of same-sex spouses or violating state law by providing this leave. Because of the federal court’s issuance of the preliminary injunction, DOL has announced that it will not be enforcing its rule change in Texas, Nebraska, Louisiana, and Arkansas pending the outcome of this litigation. However, DOL has indicated that it will enforce the rule outside of these four states. Thus, employers operating in states other than Texas, Nebraska, Louisiana, and Arkansas that do not recognize same-sex marriage should consult with counsel before deciding whether to grant FMLA leave to an employee for the serious health condition of his or her same-sex spouse.

Julie Reddig is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland. She defends and counsels management in a broad range of matters and disputes involving employment and the workplace, including discrimination claims made by prospective, current, and former employees. For more information about accommodating same-sex employees under FMLA, contact Julie at (301) 961-6099 or jareddig@lerchearly.com.

Lerch Early would like to thank Nida Kanwal for her assistance in researching the content for this article. Nida is a former law clerk at the firm and is a third year law  student at the University of Baltimore School of Law.

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