A. Unless your company is willing to assume significant legal risk, yes. Thetraditionally used a “place of residence” rule to determine whether an employee has a “spouse” under the FMLA. Thus, same-sex married employees who resided in a state that did not recognize same-sex marriages—like South Dakota—were not permitted to take FMLA leave to care for their spouse.
In March the U.S. Department of Labor (DOL) issued a final rule revising the regulatory definition of “spouse,” using the “place of celebration” rule. Under the new regulatory definition, same-sex married employees would be able to take FMLA leave as long as the couple was legally married in a state that recognizes same-sex marriage, regardless of where the couple currently resides.
Four states (Arkansas, Louisiana, Nebraska and Texas) subsequently challenged the final rule, and a federal district court issued an order requiring the DOL to stay the implementation of the new regulation. However, the scope of the stay is unclear. It is uncertain whether the stay applies only to the four states as employers, extends to all employers in those four states or applies nationwide.
The DOL has indicated that under the stay it intends to enforce the “place of celebration” rule as to all employees except those who are employed by the states of Arkansas, Louisiana, Nebraska and Texas.
Accordingly, all private employers (including those in Arkansas, Louisiana, Nebraska and Texas) are well-advised to apply the new “state of celebration” spouse definition when assessing requests for family care FMLA leave unless and until the DOL changes its position on enforcement.
Of course, with the issue of same-sex marriage currently before the U.S. Supreme Court, this is an area of law that may see significant change this year.
Susan K. Fitzke and Sarah J.Gorajski are shareholders, advising clients out of Littler Mendelson’s Minneapolis office. Contact them at (612) 630-1000 or send email to Susan at email@example.com and Sarah at firstname.lastname@example.org.