DOL Issues Final Rule on FMLA and Same Sex/Common Law Couples

Since July of 2014 the Department of Labor has been soliciting public comments on proposed rule changes to the Family and Medical Leave Act (FMLA) regarding same-sex and common-law marriages.  It recently announced that the Final Rules have been written and will become effective March 27th, 2015. Those rules replace interim guidance that had been in place for some time since the Supreme Court's striking down the Defense of Marriage Act (DOMA).

First you might ask why this was necessary.  Some will of course say that this is part of the federal government's push under a liberal administration to redefine marriage.  That is hardly the rationale.  Currently 37 states and 18 foreign countries recognize same-sex marriages, but the FMLA is a federal law that applies in all US states and governed territories.  The potential for confusion was significant. More and more young couples are cohabitating and raising families outside of a traditional marriage. The FMLA, were it not to consider the needs of these couples, would not equally extend the protections that Congress has envisioned to all workers.

For example, if a same-sex couple is married in a state that recognizes their marriage, then the FMLA would logically apply to their employment relationship lest employers in that state treat two similarly-situated married employees differently.  Similarly should that couple then move to a state which does not recognize their marriage, then the question of whether or not they lose that protection becomes a question. Common law couples, many together longer than some marriages last, have the same personal and family medical situations and needs for time off as those of us in traditional marriages. 

Throw into these situations any children that these couples may have, and who has federal protection during times of their care, and you can see the potential for conflict.  Clarity on the rights and expectations of both employers and employees was needed.

Here are the highlights.  To have FMLA protection the couple would need to have been married or obtain common law status in a state or foreign country where their marriage was recognized.  The Rule changes the definition of spouse to any person entered into a legally valid marriage including common law arrangements.  "Place of Residence" has been amended to "Place of Celebration" to be inclusive of various types of marriages.  Also the definition of covered children encompasses those parented in loco parentis; in other words, in situations where the day-to-day parenting and financial support takes place regardless of biological relationship. 

For HR professionals and employers the way forward is clear.  If you have an employee living in a family situation where they have a partner, same sex or opposite, raising children in a family setting then FMLA most likely applies to them.  You can split hairs as to what type of marriage and where it was celebrated, but the risks far outweigh the benefits.  Those risks include not only litigation but adverse publicity and brand damage, both within and outside your workplace, from being seen as a discriminatory employer.  Best to give them the Physician's Certification if they have been with you long enough to be eligible, then administer the leave according to the medical facts.

As always, comments are welcome.


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