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Proposed Rule To Expand Family Medical Leave Act Protections To All Same-Sex Marriages

A new rule change proposed by the Department of Labor (DOL) expands the protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages across all 50 states.

The proposal comes on the heels of the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Supreme Court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA entitles eligible employees of covered employers, both private and public, to take unpaid, job-protected leave for certain family and medical reasons.  “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Labor Secretary Thomas Perez.  “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

The proposed rule would change the FMLA 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 or family member.  Currently, the definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage.  Under the proposed rule, eligibility for FMLA would be based on the law of the state where the marriage was entered into.  The proposed rule would allow all legally married couples, including same-sex couples to have consistent federal family leave rights regardless of where they live.

The DOL is encouraging all interested parties to review the proposed rule and submit comments. 

This post was submitted by Grace M. Murillo is a member of WSH’s Labor and Employment Law Group.Chaired by Partner Brett J. Schneider, WSH’s Labor and Employment Law Group has significant experience consulting with and advising employers on a wide array of employment law matters, including those arising under Federal, State and local employment laws such as the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act, and the Florida Civil Rights Act (FCRA).  The Group also regularly drafts employee handbooks, manuals, policies and procedures governing a wide array of workplace issues.

Categories: Labor and EmploymentFederal Courts
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