FMLA and Same-Sex Spouses | Chicago Employee Benefits

496264349Last June, the U.S. Supreme Court ruled that a part of the Defense of Marriage Act (DOMA) that limits the definitions of “marriage” and “spouse” to opposite sex marriages and spouses is unconstitutional. Since then, the Department of Labor (DOL), the Internal Revenue Service (IRS), and the Department of Health and Human Services (HHS) have issued several notices that provide that, for purposes of federal taxes and employee benefits, a person legally married to a same-sex person in any state or foreign country is considered married even if he or she moves to a state that does not recognize same-sex marriages.

In contrast to this “state of celebration” approach, under the Family and Medical Leave Act (FMLA) an employee is considered married — or unmarried — based on the law of the state in which he or she lives when FMLA begins. The DOL has now issued a Proposed Rule that would change the FMLA definition of spouse to match the definition that is being used for other purposes — that is, if an employee who is legally married to a same-sex individual requests FMLA to care for the same-sex spouse, or the same-sex spouse’s child, FMLA would be available even if the employee lives in a state that does not recognize same-sex marriage. The federal government does not consider civil unions or legally recognized domestic partnerships as marriages, so this change would not affect employees with these arrangements.

Employers should continue to use the employee’s place of residence to determine whether FMLA should be offered until the proposed change becomes final. Comments on the proposed change may be made until August 22, 2014, so the earliest this change would be effective is sometime this fall. Employers, of course, are free to offer leave even though it is not legally required.

The DOL has issued an FAQ on the proposed rule that employers may find helpful.

For further information including best practices in FMLA, attend UBA’s webinar, “Curbing FMLA Abuse,” on Thursday, July 10, 2014, at 2:00 p.m. ET / 11:00 a.m. PT. Go to and enter code UNUMUBA for a $149 discount.