Same-Sex Spouses Will Be Entitled to FMLA Spousal-Care Leave Effective March 27, 2015



Beginning March 27, 2015. FMLA spousal-care rights will extend to any lawfully-married couples regardless of gender. If the marriage was legal in the jurisdiction where it took place, it will entitle the couple to FMLA spousal-care leave even if they relocate to a state where such marriages are not yet recognized.

This change in the law was driven by a 2013 U.S. Supreme Court ruling striking down a section of the Defense of Marriage Act (DOMA).  That section effectively prohibited same-sex marriages.   The court ruling lifted that restriction for those states that chose to permit them.  The federal Department of Labor, following that ruling, is now formally expanding the scope of the FMLA’s spousal-care provisions to any legally-married couple, regardless of the gender of either spouse.  If the marriage is legal where the ceremony was conducted, FMLA rights will attach to the couple even if they move to another state or jurisdiction that does not recognize same-sex marriages.  You’ll hear this change referred to as the “place of celebration rule.”  In other words, it’s where the marriage ceremony took place – was “celebrated” – not where the couple now lives, that will determine eligibility for FMLA leave for spousal care.

While many states and foreign countries currently legally recognize same-sex marriage, not all do. As of February 13, 2015, thirty-two states and the District of Columbia extend the right to marry to both same-sex and opposite-sex couples (Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming).

Additionally, as of February 13, 2015, eighteen countries extend the right to marry to both same-sex and opposite-sex couples (Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, Finland, France, Iceland, Luxembourg, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, and Uruguay).


Categories: DOMA, Family & Medical Leave Act Of 1993, LGBT Discrimination, Same-Sex FMLA Spousal Protection, Same-Sex Marriages

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