Legally Married Same-Sex Couples Are Now Covered By The Family And Medical Leave Act

Author:Ms Ana Rosado-Frontanés and Gabriel Maldonado-González
Profession:Littler Mendelson

Effective March 27, 2015, the regulatory definition of “spouse” under the Family and Medical Leave Act (FMLA) will cover same-sex married couples, ensuring that these couples receive the rights and protections afforded under the FMLA in any jurisdiction of the United States in which they reside. This definition applies in jurisdictions, like Puerto Rico, where same-sex marriages are not recognized. 

Current FMLA regulations provided that whether or not an employee had a spouse was to be determined by the law of the state where the employee resided. Under this so-called “place of residence” rule, same-sex married employees were not permitted to take FMLA leave to take care of their spouse if their state of residence did not recognize same-sex marriage. 

The new regulations issued by the U.S. Department of Labor (DOL) utilize theplace of celebration rule for purposes of determining if an employee is covered under the FMLA. This means that the definition ofspouse now looks to whether a couple was legally married in any U.S. jurisdiction or country, regardless of whether or not the employee's place of residence recognizes same sex-marriage. Now, all employees who are legally married (provided they are otherwise eligible under the FMLA) may benefit from taking unpaid, job-protected leave for...

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