FMLA Leave Will Apply to Same-Sex Spouses

Following the wave of cultural and legal change, the U.S. Department of Labor’s (DOL) Wage and Hour Division has ruled that all lawful same-sex spouses are recognized for purposes of FMLA leave, regardless of the couple’s state of residence. This takes effect on March 27, 2015.

The FMLA permits eligible employees to take 12 weeks of job-protected leave to care for a spouse with a serious health condition. Under the new ruling, the DOL adopts the “state of celebration” rule in determining who is considered a spouse for these purposes. That means that an eligible employee who has lawfully married a same-sex spouse in any state can take advantage of spousal FMLA leave, regardless of whether the couple resides in a state where same-sex marriage is legal. “Spouse” will be redefined to include “the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into.”

Employers should review and revise their FMLA leave policies to ensure spousal FMLA leave is extended to same-sex couples beginning March 27, 2015.

Currently, same-sex couples qualify for such FMLA protection only if the state where they live recognizes their marriage. When the new rule takes effect on March 27, 2015, all married same-sex couples will be entitled to FMLA protection, regardless of whether their home state recognizes their marriage.