A year after the Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor, the U.S. Department of Labor (DOL) has proposed to amend its regulations under the Family and Medical Leave Act (FMLA) to ensure that same-sex spouses receive the same protections as opposite-sex spouses.

On June 20, 2014, the DOL issued a Notice of Proposed Rulemaking seeking comments on its proposal to revise the definition of “spouse” in its FMLA regulations. Under the current FMLA regulations, a married couple only meets the definition of spouse if their marriage is lawful in the state where they reside, often called a “place of residence” rule. The DOL’s proposed rule, however, would recognize marriages that were lawful in the state in which they were performed, referred to as a “place of celebration” rule.

The distinction is an important one for same-sex couples who are lawfully married in a state (or a foreign country) that recognizes same-sex marriage, but who subsequently move to a state that does not recognize the marriage. Under the current regulations, those couples would not be entitled to FMLA leave.

According to the DOL’s fact sheet accompanying the NPRM, the proposed change will “ensure all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss.” The DOL’s change also brings the FMLA in line with other federal laws, which already use the place of celebration rule to determine whether spouses are entitled to federal benefits.

Upon publication of the proposed rule in the Federal Register, the public may submit comments electronically via www.regulations.gov, or by mail, addressed to the DOL.

Attorneys in Ballard Spahr’s Labor and Employment Group can assist clients in FMLA compliance and other workplace issues. If you have questions, please contact Patrick J. Harvey at 215.864.8240 or harveyp@ballardspahr.com, Kelly T. Kindig at 215.864.8652 or kindigk@ballardspahr.com, or the member of the Group with whom you work. 


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