On February 25, 2015, the Department of Labor (DOL) issued a final rule that amends the Family Medical Leave Act (“FMLA”) regulations and provides employees in same-sex marriages and common-law marriages with full FMLA rights and protections if they need leave to care for a spouse with a serious health condition, in connection with a qualified exigency, and/or to serve as military caregiver for their spouse. The new rule, which takes effect on March 27, 2015, will ensure that all legally married couples have uniform FMLA leave rights regardless of where they live.
Under the new rule, spousal status is determined based on the jurisdiction where an employee entered into a legally recognized marriage (“place of celebration”), not the state of residence. As of March 2015, thirty-seven states, including Maryland, Virginia, and the District of Columbia, recognize same-sex marriage, and eighteen countries extend the right to marry to same-sex couples.
Common Law Marriage
The new rule expressly includes those who are married under “common law marriage” so long as the marriage was validly formed in a state that permits the formation of common law marriages. Maryland, Delaware, and Virginia do not permit common law marriage at this time, but it is permitted in the District of Columbia and Pennsylvania (if entered into before January 1, 2005).
Employees whose relationships are formalized through civil unions, however, are not covered under the FMLA because a civil union is not considered a legal marriage. Thus, employees in civil unions (same-sex or opposite sex) do not have the right to take FMLA leave by virtue of that relationship.
Verification of Relationship
Employers may require any employee requesting family leave under FMLA to provide reasonable documentation verifying the family or marital relationship. The employee may satisfy this requirement by providing legal documents or a simple statement of verification, at the employee’s choice. Employers may not use a request for verification to interfere with the employee’s exercise of rights under the FMLA.
How Should Employers Prepare?
Employers should review their FMLA policies to make sure spousal coverage is consistent with the revised regulation. In addition, employers should train their human resources staff, managers, and supervisors on these changes to the law.
Melissa Jones, chair of the Employment and Labor Group, counsels employers on labor, employment, and immigration matters. If you would like further information, please contact Ms. Jones via email.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.