On Feb, 23, 2015, the U.S. Department of Labor issued a final rule extending FMLA rights to eligible workers in same-sex marriages. The rule goes into effect on March 27 so you have less than a month to be up to speed.
One important issue is that rights are extended to eligible workers regardless of whether the state in which they are employed recognizes same-sex marital status. In the press release (linked above), the DOL says:

“Today’s rule change 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 the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.”

Also see: (DOL) Fact Sheet: Final Rule to Amend the Definition of Spouse in the FMLA Regulations
Whenever FMLA changes occur, we frequently turn to Jeff Nowak’s FMLA Insights blog. Nowak is an attorney, co-chair of the labor and employment practice at Franczek Radelet. His blog is a must-read on all FMLA matters.
Here’s his post on the recent ruling: DOL Issues Final Rule Extending FMLA Leave Rights to Same-Sex Couples: Here’s Everything Employers Need to Know
He discusses:

  • What the ruling covers
  • What it means for employers (amend policies, train managers)
  • Who this applies to (marriages, not civil unions)
  • The issue of documentation
  • The issue of caring for a child to whom they stand in loco parentis

When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.


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