States Sans Gay Marriage Won’t Stop FMLA Leave

WASHINGTON (CN) - All gay spouses can use the federal Family and Medical Leave Act, even if they live in a state that doesn't recognize gay marriage, under Wednesday's amended Labor Department regulation effective March 27.

Any otherwise eligible employee has been allowed to take FMLA leave to care for his or her same-sex spouse (or for another, based on a same-sex relationship), if the employee lived in a state that recognized gay marriage. This has been true at least since the United States Supreme Court deemed section 3 of the Defense of Marriage Act unconstitutional in 2013.

Under the new amendments, it will not matter where the employee lives, as long as the marriage was legal where it took place.

The definition of spouse for FMLA purposes has also included a husband or wife in a common law marriage in states where it is recognized. Under the amendments, if a couple becomes married under state law by virtue of the nature and length of their relationship (known as "common law marriage"), for FMLA purposes it will not matter where the couple lives when FMLA leave is needed. The wording of the amendments also would not exclude spouses in a same-sex common law marriage, the department added, in response to public comment.

The Family and Medical Leave Act allows eligible employees to take job-protected, unpaid leave for up to 12 workweeks in 12 months to care for family or medical conditions. The leave is often used to care for a newborn.

Under the act, employers must continue group health plan coverage, and, after the leave, restore the employee to the same or an equivalent position with equivalent employment benefits, pay and other conditions.

The FMLA provides eligible employees with leave to care for a spouse in the following situations: (1) when needed to care for a spouse due to the spouse's serious health condition; (2) when needed to care for a spouse who is a covered service member with a serious illness or injury; and (3) for a qualifying exigency related to the covered military service of a spouse.

The Defense of Marriage Act, enacted in 1996, restricted the definitions of "marriage" and "spouse" for purposes of federal law, regulations, and administrative interpretations: "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The United States Supreme Court deemed this interpretation unconstitutional in 2013, in United States v. Windsor. It concluded that the provision "undermines both the public and private significance of state-sanctioned same-sex marriages" and found that "no legitimate purpose overcomes" the provision's "purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect," according to the decision.

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