In February, the U.S. Department of Labor (DOL) announced an important new rule that revises the definition of “spouse” under the Family and Medical Leave Act (FMLA). Under the updated definition, the term “spouse” now includes employees who are in legal same-sex marriages, regardless of the state in which that employee currently works or resides. This revised rule, which took effect on March 27, is known as the “place of celebration” rule.
The FMLA allows eligible employees of covered employers to take job-protected, unpaid leave for certain family and medical reasons. Prior to the new rule, “spouse” was defined in relation to whether the state in which the employee resided recognized same-sex marriage. Thus, FMLA protections did not extend to same-sex spouses residing in a state that did not recognize same-sex marriage. Now, the revised definition includes “an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages, or (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”
The DOL’s revised definition comes after the United States Supreme Court’s 2013 decision in United States v. Windsor. In Windsor, the Court struck down as unconstitutional the portion of the Defense of Marriage Act (DOMA) that defined a “spouse” as “a person of the opposite sex who is a husband or wife.”
The FMLA’s updated definition shifts the focus from where the employee currently resides to where the marriage was celebrated. Now, an employee who is married in a state that recognizes same-sex marriage and later moves to a state that does not still retains his or her rights under the FMLA. Also, employers located in states that have not legalized same-sex marriage are still required to provide job-protected, unpaid leave to an employee in a same-sex marriage if that employee meets the new definition of “spouse” under the FMLA.
While 32 states and the District of Columbia currently recognize same-sex marriages, Michigan does not. However, even though Michigan does not currently recognize same-sex marriages, the FMLA’s updated definition of “spouse” allows FMLA-eligible employees in Michigan to take leave to care for a same-sex spouse.
So what can Michigan employers do to ensure compliance with this new rule? Two things:
1. Review their FMLA policies and, if it is necessary, update the policies to comply with the new rule, which is now in full effect as of March 27.
2. Train their HR personnel, supervisors, and leave administrators on the provisions of the new rule and the changes they bring.
The attorneys at Dalton & Tomich have extensive experience in the areas of labor and employment law. If you have any questions about this change, or about other labor and employment issues, feel free to contact us to discuss your matter.