U.S. DOL Proposes Rule to Extend FMLA Protections

Would expand coverage to all eligible employees in same-sex marriages

U.S. Secretary of Labor Thomas E. Perez has announced proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of what state they live in. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides.

Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages. This change would not affect Connecticut employers that are covered under the federal FMLA, since Connecticut law already recognizes same-sex marriage.

For additional information on the FMLA, including information and fact sheets on the proposed revisions, click here. The department encourages all interested parties to view the proposed rule and submit comments here. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.