HR Tip: DOL issues final rule extending FMLA leave rights to same-sex couples

The Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status. A fact sheet was also issued.

According to Jeff Novak, co-chair of FranczekRadelet's Labor and Employment Practice and author of the firm's highly regarded FMLA Insights blog, the new final rule, which takes effect March 27, 2015, provides that the definition of "spouse" indeed is determined by the state in which a marriage is entered (i.e., the "state of celebration").

He notes that employers subject to FMLA should:

• Train leave administrators and supervisors on the new rule.
• Review and amend FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term "spouse" in a way that does not account for the new rule.
• Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation. That said, employers are free to provide greater rights than those provided for under the FMLA.

His blog also addresses the issues of requiring documentation to verify that a same-sex or common law marriage is valid, as well as FMLA leave care for a child to whom they stand in loco parentis. More information.