By Megan G. Holstein, Senior Counsel, Compliance and Employment Law

The Family and Medical Leave Act (FMLA) allows eligible employees 12 work weeks of unpaid leave to care for a spouse, child, or parent who has a serious health condition. But the FMLA defines a spouse as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works). 29 C.F.R. §§ 825.102, 825.122(b).

This June, the United States Supreme Court issued a decision, United States v. Windsor, striking down a key provision of the Defense of Marriage Act (DOMA,) allowing employees to take FMLA leave to care for a same-sex spouse if the employee resides in a state that recognizes same-sex marriages. We’ve previously written about the Windsor decision as well the Department of Labor’s (DOL) updates to incorporate Windsor into its regulatory and enforcement activities. Even after the Windsor decision and the DOL updates, however, the FMLA still didn’t cover employees who reside and/or work in states that do not recognize same-sex marriages, but who married in a state that does recognize such unions. (Yes, it’s confusing.)

The DOL announced that it plans to revise the regulatory definition of “spouse” under the FMLA “in order to fully implement the Supreme Court’s decision”. The DOL plans to fill the gap and confusion of the FMLA’s current definition of “spouse” by issuing a notice of proposed rulemaking to revise the FMLA regulations accordingly. Reed Group will be monitoring the DOL’s proposed rulemaking and the FMLA regulations revision process and will provide periodic status updates, including an announcement when the final regulations are issued. Stay tuned!

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