Back in June, after the Supreme Court’s ruling on same-sex marriage, I made a fairly easy prediction:
The federal FMLA is also anticipated to undergo some pretty big changes in states that approve same-sex marriages. Already in 2010, the FMLA regulations suggested that married same-sex couples could take time off to care for a newborn child; now FMLA policies will have to be tweaked to make it plain that employees can take time off to care for a same-sex spouse where it is legal.
Last week, the U.S. Department of Labor went ahead with those revisions in an updated “Fact Sheet”. But before I spell that out, let’s talk about the employers that this affects:
- If you have fewer than 50 employees, you are probably not covered under the FMLA. The USDOL’s guidance won’t change that.
- Similarly, if you have 75 or more Connecticut employees, you are probably covered by the state version of the FMLA. The CTFMLA has protected same-sex spouses now for a few years. The USDOL’s updated fact sheet won’t change much.
- For employers in Connecticut with 50-74 employees, only the federal FMLA has technically applied. For these employers, the changes announced by the USDOL will have an impact.
The USDOL clarified that the definition of a “spouse” will depend on the state law:
Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.
Obviously, in Connecticut, which recognizes same-sex marriages now, that means the FMLA will now cover same-sex spouses. For employers in states other than Connecticut which recognize such marriages, this also means the FMLA will also apply to such spouses.
But here’s the rub, as a JD Supra post highlighted:
The DOL’s FMLA “spouse” definition does not cover situations in which an employee in a same-sex marriage resides in a state that does not recognize same-sex marriage, but was married or works in a state that does recognize such marriages. If the DOL wishes to expand the “spouse” definition, it will be unable to do so through fact sheets or interpretive guidance, but instead must act through a public notice-and-comment rulemaking process.
For employers, the change should not be surprising. But it does mean employers should do what typically needs to be done in these situations: Train supervisors, update policies, and seek additional guidance if you have employees in states that do not recognize same sex marriages.