Last week the U.S. Department of Labor published a proposed rule to extend FMLA benefits to same-sex spouses on the same terms as spouses of other legally recognized marriages. This will confirm, if passed, that FMLA benefits must be provided to all eligible employees to: care for their legally married spouses who have a serious health condition; take military exigency leave for spousal military service; take military caregiver leave to care for their same-sex spouse servicemember. This is significant in that Texas is a state that does not recognize same-sex marriages.
The FMLA allows eligible employees to take job-protected leave for specified family and medical reasons –including leave to care for a spouse with a serious health condition. In determining who is a “spouse” under the FMLA, the regulations currently provide a “state of residence” test whereby the employee is eligible to take FMLA leave for the serious health condition of a same-sex spouse if the employee resides in a state recognizing same-sex marriage. The continuing viability of this regulation and a Texas employer’s obligation to extend FMLA leave to employees to care for same-sex spouses has been in doubt since the U.S. Supreme Court struck down similar U.S. Treasury guidance defining spouse in such a way as to exclude same-sex spouses in the 2012 case U.S. v. Windsor –the Defense of Marriage Act case.
Under the proposed rule, a “state of celebration” test will be used where the marriage is recognized for FMLA purposes if it was performed in a state that legally recognizes same-sex marriages. Assuming that this regulation becomes final (and it most certainly will after a public comment period and publication in the Federal Register as a final rule), it will confirm that Texas employers must recognize all legal marriages (including same-sex marriages) for FMLA purposes.
You can download a copy of the proposed rule here.
Access to the DOL’s FAQ page is available here.
Download the DOL Fact Sheet on the Proposed Rule here.
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