Under the current law, legally married couples can apply for emergency leave to care for their partners under the Family and Medical leave Act if they reside in a state where same-sex marriage is legal.
The U.S. Department of Labor’s Wage and Hour Division today announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the Family and Medical Leave Act of 1993 (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.
The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.
Attorney General, Eric Holder, is also due to issue a review, on June 20, 2014, of how the more than 1,000 different federal rights and obligations linked to a marriage or a spouse are affected by the Supreme Court’s Windsor decision.
President Obama on Tuesday said he would sign an executive order barring federal contractors from discriminating against employees based on their sexual orientation.
If these regulations are issued and not overturned in subsequent litigation, employers in states where same-sex marriage is not recognized will still need to revise their FMLA policies to extend leave to same-sex couples married in other states that recognize such marriages.
By: Don Benson, Esq.