The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employees of covered Employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions. On February 25, 2015, the U.S. Department of Labor revised Family Medical Leave Act definition of a “spouse.” The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.
The DOL noted in its Fact Sheet on the Final Rule that the definitional change means that eligible employees, regardless of where they live, will be able to take:
- FMLA leave to care for their lawfully married same-sex spouse with serious health conditions,
- Qualifying emergency leave due to their lawfully married same-sex spouse’s covered military service,
- Military caregiver leave for their lawfully married same-sex spouse,
- FMLA leave to care for a stepchild, regardless of whether the in loco parentis (in the place of parents) requirement of providing day-to-day care or financial support for the child is met,
- FMLA leave to care for a stepparent, who is same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee,
- FMLA leave for their own serious condition, or
- FMLA leave for the birth of a child or the placement of a child for adoption or foster care and bonding.
Action Items for Employers:
Employers that are required to provide FMLA should train and familiarize their Human Resources, Leave Administrators, and Managers/Supervisors with this new rule if they are involved with the leave management process, as benefits available to certain employees may change with the Final Rule.
In addition, we recommend that employers update their FMLA policy in their Employee Handbook, forms, and notices, if they specifically defined “spouse” in any matter, so that the documentation reflects the new changes of the DOL’s definition, which takes effect March 27, 2015.
Additional Information on the Final Rule:
- Text of Final Rule (PDF)
- Fact Sheet on the Final Rule (PDF)
- Frequently Asked Questions
- Press Release
- Blog Post
- NPRM Website
- FMLA Homepage
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