FMLA May Be Expanded to Same Sex Spouses and Common Law Spouses in 50 States

Same sex spouses are now entitled to FMLA leave in states that recognize gay marriage, but this coverage would be extended nationwide (and expanded to include common law spouses), if a new rule proposed by the US Department of Labor goes into effect. Employers and other interested parties have until August 11, 2014 to comment on the proposed rules at www.regulations.gov.

The federal Family and Medical Leave Act or FMLA covers employers with 50 or more employees within 75 miles. That law permits an eligible employee to take up to 12 weeks of unpaid leave in a 12-month period, when the employee has a serious health condition, or to care for a family member with a serious health condition.  (Several states including California and New York have more stringent leave laws.) The FMLA defines a family member as a spouse, a parent or a child under the age of 18.

In the past, only legally married opposite-sex partners (husbands and wives) qualified as “spouses” under the federal DOMA, the Defense of Marriage Act. Earlier in 2014 the US Supreme Court struck down the portion of the Defense of Marriage Act that interpreted “marriage” and “spouse” to be limited only to opposite-sex partners under federal law, in United States v. Windsor.

That ruling transformed the definition of a “spouse” for FMLA purposes to include a legally married same sex partner, if the employee works in a state that recognizes gay marriage. Under the current FMLA regulations, an employee in Illinois can take FMLA to care for a same sex spouse with a serious health condition, because Illinois recognizes gay marriage. However, if the same employee is transferred to Michigan, he or she cannot take FMLA to care for a same sex spouse, because Michigan currently does not recognize their marriage. This is true under federal law, even if the employee worked for the same company in Illinois and Michigan.

The new proposed rule would extend FMLA to spouses of all sexes, as long as the marriage was legal in the state where it was celebrated. This replaces the current regulation, which limits “spouses” to partners in a marriage recognized in the state where the employee works.

This is a rapidly changing area of employment law since advocates for gay marriage are challenging the traditional definition of marriage in nearly every state. Currently there are 19 states (plus Washington, D.C.) where same-sex marriage is recognized (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Pennsylvania, Washington and Vermont.)

The new proposed rule would also extend FMLA to common law spouses in all 50 states, as long as the relationship is legally recognized in at least one state. This includes live-in relationships between same sex and opposite sex couples. Currently 8 states allow residents to enter into common law marriages: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana and Texas. (Utah also recognizes common law marriages, but only if they have been validated by a court.) In practice, this means a couple who lived together but were not married in Illinois would not be entitled to FMLA for an ailing spouse. However, if the same Illinois couple had lived together in Colorado in the past and their union was recognized as a common law marriage in that state, they would be entitled to FMLA as spouses.