“In Sickness and in Health…”: DOL Issues Final Rule Granting FMLA Rights to Married Same-Sex Couples

March 10, 2015

The DOL issued a Final Rule revising the Family and Medical Leave Act’s (FMLA) definition so that eligible employees in legal same-sex and common law marriages can take FMLA leave to care for their spouse or family member, regardless of where they live. The regulation is effective March 27, 2015. The DOL has moved from a “state of residence” rule to a rule based on where the marriage was entered into (“place of celebration”) to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live. Under the place of celebration rule, eligibility for FMLA leave to care for a spouse with a serious medical condition will now depend on the law of the state in which the marriage took place. Previously, the definition of “spouse” based on the state of residence rule meant that legally married same-sex couples who resided in a state that did not recognize same-sex marriage were not treated as spouses under the FMLA. Now, a same-sex couple that is legally married but has moved to a state that does not recognize same-sex marriage will nevertheless enjoy the same rights under the FMLA as other legally married couples. The new rule is intended to bring FMLA regulations in sync with the US Supreme Court’s ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act limiting marriage to opposite-sex couples (133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013)). Following the Supreme Court’s decision in Windsor, the DOL updated its public guidance to remove references to the Defense of Marriage Act (DOMA) restrictions and to expressly state that the FMLA’s definition of spouse is no longer limited to opposite-sex marriages and spouses (see DOL: Wage and Hour Division Fact Sheet #28F).

What does this mean for Wisconsin employers? Effective March 27, 2015, your employees in a legal same-sex marriage have the same eligibility for FMLA leave as those in legal opposite-sex marriages. However, the amendment to the meaning of “spouse” under the federal FMLA does not affect the Wisconsin Family Medical Leave Act (WFMLA). Note that the WFMLA is broader in scope then the federal FMLA as it not only recognizes the right of an employee to take a leave of absence for the serious health condition of a “spouse,” defined as “an employee’s legal husband or wife” (including a same-sex spouse), but also provides leave rights to employees engaged in domestic partnerships.  The WFMLA defines “domestic partner” in one of two ways. First, domestic partner can mean two individuals who: (i) are 18 years or older and competent to enter into a contract; (ii) are not married to or in a domestic partnership with anyone else; (iii) are not related by blood in a way that would prohibit marriage; (iv) consider themselves each other’s immediate family; (v) agree to be responsible for each other’s basic living expenses; and (vi) share a common residence. Second, domestic partners can be those who have signed and filed a declaration of domestic partnership in the office of the registrar of deeds of the county in which they reside. In Wisconsin, domestic partnerships can apply to same-sex couples who are not married as well as to opposite-sex couples who are not married. Therefore, even employees who are not legally married can be eligible for up to two weeks of WFMLA leave if they are part of a domestic partnership recognized under state law. IF you have questions about the difference between Wisconsin and federal FMLA laws, contact me or another attorney in our Employment Law Department.

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