On February 23, 2015, the U.S. Department of Labor issued a Final Rule that will allow an employee to take FMLA leave to care for a same-sex spouse regardless of whether the employee lives in a state that legally recognizes their marital status.  The rule becomes effective on March 27, 2015.

Prior to the March 27 effective date, the FMLA regulations have defined “spouse” according to the law of the state in which an employee resides.  Thus, the FMLA did not provide same-sex spousal leave rights if an employee resided in a state that did not recognize the employee’s same-sex marriage that was validly entered into in another jurisdiction.

The new rule announced by the DOL – known as the “place of celebration” rule – updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal, same-sex marriage will be able to take FMLA leave for his or her spouse, regardless of whether the state in which the employee resides permits same-sex marriages.  However, the new rule still does not require employers to afford FMLA leave to employees who are in civil unions or domestic partnerships but not legally married.  An employer is permitted to verify the existence of an employee’s marriage by requesting reasonable documentation, and an employee may satisfy this requirement by providing either a marriage license or a simple statement asserting that he or she is validly married.

Employers who are covered by the FMLA are well-advised to take steps to ensure that supervisors and any employees responsible for administering leave policies are aware of the new rule so that same-sex marriage leave requests are not improperly denied.  Moreover, employers should review and amend their FMLA policy, as necessary, to incorporate the new definition of “spouse.”

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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