DOL Proposes to Expand “Definition of Marriage” in FMLA for Same Sex Married Couples

June 23, 2014 at 9:54 am | Posted in Department of Labor, FMLA, Same Sex Marriage | Leave a comment
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Even though almost a full year will have passed since the Supreme Court’s historic ruling on June 26, 2013 in United States v. Windsor, the Department of Labor’s (DOL) application of the Court’s ruling in an FMLA context continues to evolve. Specifically, under the FMLA’s current regulatory definition of spouse, eligible employees can take FMLA leave to care for a same-sex spouse only if they reside in a State that recognizes same-sex marriages. The DOL acknowledged that the current definition does not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lives in a State that does not currently recognize same-sex marriage. The DOL is now proposing to move from a state of residence rule to a rule based on where the marriage was entered into (place of celebration). A place of celebration rule would allow all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. The DOL is encouraging interested parties to submit comments on their proposal. The full text of the proposal as well as information on the deadline for submitting comments and the procedures for submitting comments can be found at http://www.dol.gov/whd/fmla/nprm-spouse/.

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