US Department of Labor seeks to redefine “spouse” and “marriage” under FMLA
The Family and Medical Leave Act provides many public and private sector employees with the option to stay out of work for a period of 12 weeks each year, without pay, for medical reasons. This is true whether it is the worker him or herself who is ill, or a member of his or her immediate family. But what is the definition of immediate family?
The answer has changed in the past few years as same-sex marriages have become legal in various states. In United States v. Windsor, the U.S. Supreme Court found unconstitutional the part of the federal Defense of Marriage Act that limited “marriage” and “spouse” to heterosexual couples only. Things began to change dramatically and rapidly in various courts around the country, at both the federal and state levels.
As a result of that June 2013 decision, the Department of Labor announced last year it intended to change the FMLA definition of “spouse”. Accordingly, it issued a notice of proposed rulemaking. The proposed changes make federal family leave rights consistent for all legally married couples–same-sex and opposite-sex–even if after marrying they relocate to a state in which the marital union is not recognized.
Since it typically takes a minimum of three months for such a rule to be proposed following, the close of the initial comment period, and that period closed in August of last year, it is possible that a rule could be proposed very soon. Even then, however, the rule would not be final. Instead, there will be another comment period and response time before the rule will be finalized.
We will provide updates on this subject. In the meantime, it is likely that same-sex couples who reside in the State of New Jersey will wonder how the FMLA applies to them. It is best to consult with a lawyer who represents New Jersey employees in their FMLA-related issues. We encourage anyone with questions to contact our law firm. You will be happy that you did.
Source: BLR, “DOL to change FMLA spousal leave: Notice of proposed rule issued for new definition of spouse,” Susan Schoenfeld, Sept. 11, 2014