By: Jeffrey B. Halbert
On June 20, 2014, the U.S. Secretary of Labor, Thomas E. Perez, announced a proposed rule that will have significant impact on those employers covered by the Family and Medical Leave Act (FMLA). The announcement indicated the Department of Labor’s intent to extend the protections afforded under the Family and Medical Leave Act (“FMLA”) to all eligible employees in legal same-sex marriages without regard to their state of residence. The proposed rule is one of many results that flowed from the U.S. Supreme Court’s decision in United States v. Windsor, in which the Court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for purposes of federal law. The Labor and Employment Group at Bose McKinney & Evans advised covered employers to expect this expansion of FMLA protection earlier this year.
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. These reasons include being entitled to take FMLA leave to care for a spouse who has a serious health condition. The proposed rule would change the FMLA’s regulatory definition of “spouse” so that eligible employees in legal same-sex marriages would be able to take FMLA leave to care for a spouse for purposes recognized by the Act. This would include care for a same-sex spouse with a serious health condition, qualifying exigency leave because of a same-sex spouse’s covered military service, and military caregiver leave to care for a same-sex spouse. Currently, legally married same-sex couples are eligible for FMLA benefits only if they reside in a state in which same-sex marriage is legal.
The Department of Labor has prepared a fact sheet on the proposed rule. The fact sheet spells out major features of the rule as well as the expected impact on FMLA leave. It also explains that the proposed definition of “spouse” expressly includes same-sex marriages, as well as common-law marriages, and encompasses same-sex marriages that were entered into abroad and would be legal in at least one state. In addition, the fact sheet notes that the proposed rule would entitle eligible employees to take FMLA leave to care for a stepchild (i.e., child of employee’s same sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met by the employee, and to care for their stepparent (i.e., employee’s same-sex spouse’s parent), even though the stepparent never stood in loco parentis to the employee.
The Office of Management and Budget has reviewed the Notice of Proposed Rulemaking (NPRM), but it has not yet been published in the Federal Register. The NPRM that appears in the Federal Register will specify the dates of for public comment and may contain minor differences in accordance with other requirements. Once published, interested parties are encouraged to submit comments within 45 days. The proposed rule cannot go into effect until some announced time after this comment period has elapsed. We will keep you informed of its status and substance.
Bose McKinney & Evans’ Labor and Employment Group can help ensure your company is informed and prepared to manage this significant change in the law. For more information regarding this proposed rule or any other labor and employment question you may have, please contact your Bose McKinney & Evans labor and employment attorney.