Same-Sex Marriage and the FMLA: What Employers Need to Know

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On Friday, the U.S. Department of Labor officially published a Notice of Proposed Rulemaking on the definition of "spouse" in the Family and Medical Leave Act. The proposed changes would broaden the definition of "spouse" to include most same-sex married couples.

The proposed changes are intended to reflect (and expand upon) last year's Supreme Court decision in United States v. Windsor. That decision overruled Section 3 of the Defense of Marriage Act, which defined "marriage" for purposes of federal law as being between one man and one woman.

Consistent with Section 3 of the DOMA, the DOL has traditionally defined "marriage" for FMLA purposes in this same way (that is, as male-female). With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence. As an example, if Joe and Mary got married in California and moved to North Carolina, they would be "spouses" if North Carolina recognized the marriage.

When you're talking about opposite-sex couples, this is no big deal because a marriage validly entered into in one state will be always honored by the other states.

But this principle does not necessarily apply to same-sex couples. If Keith and David got married in California (where it is legal) and moved to North Carolina (which does not recognize same-sex marriage), then they are not validly married while they're living in North Carolina. That's because Section 2 of the DOMA, which has not been overruled (yet), says that a state does not have to recognize a same-sex marriage, even if it was valid in the state where it was entered.

The Windsor decision didn't address this situation -- Windsor involved a same-sex couple who were married in one state in which same-sex marriage was legal, who then moved to another state in which same-sex marriage was legal. The Court in Windsor said that it was unconstitutional for federal law to treat the couple in these circumstances as "not married." But Windsor did not address what would happen if a validly-married same-sex couple moved to a state where same-sex marriage was not recognized.

Proposed Changes

The changes proposed to the FMLA regulations would essentially provide for uniform treatment of same-sex spouses by looking at the "state of celebration" (the state where the marriage was entered) instead of "state of residence." In other words, if you are validly married according to the laws of the state in which you got married, then you are "spouses" for FMLA purposes regardless of where you may live in the future.

The DOL argues that its proposed changes will provide for more consistency, which will make things easier for same-sex couples and also for employers who have multi-state operations. The DOL also noted that the U.S. Department of Defense already follows a "state of celebration" rule for military spouses.

Here, then, are the highlights of the proposed FMLA rule:

1) Instead of using "place of residence" in determining whether a couple is validly married, the proposed rule would use "place of celebration" -- that is, the place where the marriage was entered. So if Sue and Josephine get legally married in Massachusetts, they will be eligible for spousal FMLA leave regardless of where they live afterward. (Assuming, of course, that they work for a "covered" employer, meet the eligibility requirements for FMLA leave, haven't already used their allotted FMLA leave, and need the leave for a qualifying reason.)

2) The FMLA definitions in the proposed rule expressly state that "husband and wife" includes same-sex spouses.

3) Same-sex couples who were married outside the United States will be considered "husband and wife" as long as the marriage (a) was valid where entered, and (b) would be considered valid in at least one (presumably U.S.) state.

In related news, last week two judges of a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit* affirmed a decision striking down Utah's ban on same-sex marriage. This is the first appellate-level decision we have on this issue. And a federal district judge in Indiana has struck down Indiana's ban.

*The Tenth Circuit hears appeals from federal courts in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

The DOL is accepting comments on the NPRM through August 11. To submit a comment electronically, go to http://www.regulations.gov, and use Regulatory Information Number (RIN) 1235-AA09. Send written comments to Mary Ziegler, Director of the Division of Regulations, Legislation and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, D.C. 20210.

If you have a question about the proposed rule or any aspect of the Family and Medical Leave Act, please contact any member of Constangy's Litigation Practice Group, or the Constangy attorney of your choice.

About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.