DOL Wants FMLA to Cover Same-Sex Couples

The U.S. Department of Labor (DOL) is seeking to extend coverage of the federal Family and Medical Leave Act (FMLA) to same-sex couples following a Supreme Court ruling that federal benefits cannot be limited based on a definition of marriage as a union between one man and one woman.

In United States v. Windsor, 133 S. Ct. 2675 (2013), the Court found the Defense of Marriage Act’s definition of marriage unconstitutional for treating same and opposite-sex couples differently under federal law.

FMLA entitles eligible employees to unpaid leave for family, medical and military- related reasons. Currently, an employee in a same-sex marriage may not be eligible to take FMLA leave to care for a partner, a partner’s child or a partner’s parent with a serious health condition. The DOL’s proposal would change that by giving same-sex marriages equal access to FMLA benefits currently enjoyed by opposite-sex marriages.

In determining the legal status of marriages and qualification for leave benefits under the FMLA, the new rule adheres to state law where the couple was married rather than their current state of residence. The DOL says this will ensure equal protection for all valid marriages under federal law. The rule change provides married same-sex partners with leave to care for a spouse or a child or parent of the employee’s spouse.

The DOL is currently accepting comments on its proposal. The full text of the NPRM, as well as information on the deadline for submitting comments and the procedures for submitting comments, can be found at www.dol.gov/whd/fmla/nprm-spouse.

Additional Information

For additional information, please contact Mike Buck, Chair of Benesch’s Labor & Employment Practice Group, at mbuck@beneschlaw.com or 216.363.4694.

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