By: Dan Cohen – 3/3/15
On February 23rd, the Department of Labor issued its Final Rule (http://www.dol.gov/whd/fmla/spouse/index.htm) allowing an employee to take FMLA leave to care for a same-sex spouse as long as the employee is in a lawful same sex marriage. The Final Rule will take effect on March 27, 2015. The DOL refers to this as the “place of celebration” rule, which trumps any state law to the contrary. For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.
The DOL made this regulatory change in light of the United States Supreme Court’s June 2013 decision in United States v. Windsor, which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Section 3 of DOMA defined spouse for purposes of federal law, which included the FMLA, as a person of the opposite sex. As a result, prior to Windsor, an employee was not entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.
Following the Windsor decision, under the then-existing FMLA regulation defining spouse, eligible employees in same-sex marriages recognized in their “state of residence” could take FMLA leave to care for a same-sex spouse with a serious health condition. However, this definition did not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lived in a state that did not recognize same-sex marriage.
The Final Rule does not change any of the other substantive FMLA provisions. For example, all requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must still be met. The Final Rule allows eligible employees the opportunity to take FMLA leave to care for their lawfully wed same-sex spouse, regardless of where they live, when
- caring for their same-sex spouse with a serious health condition,
- taking qualifying exigency leave due to their same-sex spouse’s covered military service, or
- taking military caregiver leave for their same-sex spouse.
In unrelated FMLA news, the DOL’s FMLA forms expired, but the Office of Management and Budget, which approves the DOL forms, extended the expiration through the end of March, 2015. The DOL’s forms–with the new March 31, 2015 expiration date, include the following:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (http://www.dol.gov/whd/forms/WH-380-E.pdf)
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (http://www.dol.gov/whd/forms/WH-380-F.pdf)
- WH-381 Notice of Eligibility and Rights & Responsibilities (http://www.dol.gov/whd/forms/WH-381.pdf)
- WH-382 Designation Notice (http://www.dol.gov/whd/forms/WH-382.pdf)
- WH-384 Certification of Qualifying Exigency For Military Family Leave ()
- WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave (http://www.dol.gov/whd/forms/WH-385.pdf)
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (http://www.dol.gov/whd/forms/wh385V.pdf)
From now until March 27, 2015, the public may submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.