DOL ANNOUNCES FMLA SAME SEX MARRIED COUPLE GUIDANCE: FMLA Available To Married Same Sex Couple Residing In A State That Recognizes Same Sex Marriage But Not Available If The Same Couple Resides In A State That Does Not Recognize Same Sex Marriage

August 20, 2013 at 9:12 am | Posted in Department of Labor, FMLA, Same Sex Marriage | Leave a comment
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Last week, the Department of Labor released updated guidance outlining the basis for taking FMLA leave and defined “spouse,” for FMLA purposes as:

Spouse: Spouse means 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.

What Is The Practical Impact of the Guidance? 

An employer located in a state that does not recognize same sex marriage does not have to grant FMLA leave to a same sex married employee to care for that employee’s same sex spouse if the same sex married couple do not reside in a state that recognizes same sex marriage.  There is nothing in the DOL guidance, however, that precludes an employer in the situation above from having its own internal corporate leave policy allowing for job and benefits protected leave for a same sex spouse.  Until there is further judicial review, there will be disparate treatment of same sex married couples for FMLA leave purposes that will turn on their place of residence.

A copy of the FMLA Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act can be found here: DOL Updated Fact Sheet #28F: Qualifying Reasons for Leave under the FMLA (PDF)

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