Department of Labor Proposes a Change to the FMLA Definition of a “Spouse”

On June 20th the Department of Labor proposed a change to the current Family Medical Leave Act definitions. The proposed changes would strengthen the rights of same sex married couple to take FMLA leave to care for a spouse with a serious health condition.

Currently the definition of spouse reads “a husband or wife defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in States where it is recognized.” (emphasis added). This means that the law only recognizes same sex married couples that are married under the law of the state in which they reside.

This definition means a same sex couple that is married in a state recognizing same sex marriages, but live in a state that does not recognize same sex marriage would not be considered a “spouse” under the current definition. There are many same sex couples who have travelled out of their state of residence to get legally married. These couples have fewer rights under federal law because their states of residence do not recognize their marriage.

The DOL has proposed changing the definition to read:

“For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into, or in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

This new definition means a couple that marries in a state recognizing same sex marriage but lives in a state that does not recognize same sex marriage would now fall under the definition of “spouse”. Under the new rule a same sex married couple would be able to take FMLA leave in order to care for their spouse if the spouse has a serious health condition. It would not matter if the couple lived in a state that does not recognize the validity of their marriage. This helps to equalize rights under federal law for same sex couples regardless of their state of residence.

It is still possible that this proposed rule change will be blocked or the rule altered before implementation. However, with the recent court decisions striking down same sex marriage bans from Kentucky to Utah it seems likely that this definition will be become the new law.

The proposed DOL definition change will be very good for the many married couples in states that don’t recognize same sex marriage, like Georgia for example. If you are a in a same sex marriage but live in Georgia, and you have run into trouble taking time to care for your spouse, contact Atlanta FMLA attorney Ben Kandy.

 

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