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DOL issues FMLA guidance for same-sex spouses

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in FMLA Guidelines,Human Resources

Responding to the U.S. Supreme Court’s June decision overturning a key part of the federal Defense of Marriage Act (United States v. Windsor), the U.S. Department of Labor has affirmed that employees with same-sex spouses have the same FMLA rights as other married employees—as long as they live in a state that has legalized same-sex marriage or recognizes such marriages performed in other states.

A new DOL fact sheet updates the FMLA’s definition of “spouse” as “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.”

The fact sheet doesn’t address the definition of “spouse” as it applies to same-sex married couples who live in states that don’t recognize same-sex marriage.

What it means: Same-sex married couples who live in a state that recognizes same-sex marriages or gives validity to same-sex marriages legal in other states are entitled to up to 12 weeks of FMLA leave in a 12-month period to care for a seriously ill spouse.

Military-connected spouses may also take 12 weeks of “qualifying exigency” leave for activities associated with a spouse’s deployment, and up to 26 weeks of caregiver leave to care for a military spouse who is seriously injured or ill.

Advice: Consult your attorney to ensure that your FMLA policy conforms with the DOL guidance, especially if some of your employees live in states that recognize same-sex marriage, while others live in states that do not.

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