Family and Medical Leave Act (FMLA) Protections for Same-Sex Spouses

According to a Final rule recently adopted by the Department of Labor, same-sex couples that are legally married will now be included in the definition of spouse under the Family Medical Leave Act. This means they will be eligible to use FMLA in order to care for their spouse or a family member even if their marriage is not recognized in the state in which they live. The rule became effective on March 27, 2015, but one state’s Attorney General has filed an action seeking to enjoin implementation of the Rule.
Under the Family Medical Leave Act’s “state of residence” rule which had previously been in place since the 1990s, employees were not eligible for protections under FMLA if they were in a legal same-sex marriage in one state but moved to or resided in a state that did not legally recognize the marriage. The new rule known as “place of celebration”, determines eligibility by looking to whether the marriage was valid in the state where the couple was married, regardless of where the couple resides. According to the Department of Labor, the Final Rule’s definition of “spouse” “expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.”
On March 18, 2015, Texas Attorney General Ken Paxton commenced a lawsuit against the U.S. Department of Labor, seeking a temporary and permanent injunction to block the Final Rule. In its complaint, Texas argues that United States v. Windsor allows states to decide whether to recognize out-of-state same-sex marriages, and that the Final Rule invalidly attempts to abrogate the States’ sovereign immunity and thus “flies in the face” of the Supreme Court’s decision.
If the Final Rule goes into effect, eligible employees will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, and take military caregiver leave or qualifying exigency leave when a spouse is on covered active duty. This amendment does not change FMLA rules for domestic partnerships or civil unions. Employees in same-sex marriages will also be able to take FMLA leave for step children. Before this new rule, FMLA leave could not be taken for step children of same-sex couples unless the employee was responsible for the day to day care or financially supported the child. Employees will also been able to take leave to care for a step parent who is the employee’s parent’s same-sex spouse.
If you feel that you have been wrongfully denied FMLA leave or were fired after taking leave or if you have questions about how this new rule may affect your case, it is strongly advised that you contact one of our experienced and compassionate Tennessee FMLA attorneys with the Higgins Firm. We will work with you to see to it that you receive the compensation you are entitled to for your loved ones.