Seriously? – FMLA, Spousal Relationships and Same-Sex Marriage

Seriously? A FMLA Series, Episode 7

by Carla O’Sullivan

My Two Dads…Are Going to the Chapel


And just like that, the wait is FINALLY over! On June 16, 2013, the U.S. Supreme Court lobbed an unexploded grenade into the middle of the federal FMLA when it declared Section 3 of DOMA to be unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” This section identified “spouse” to specifically apply only to heterosexual unions. Although their hearts were in the right place, it was all of the stuff left unsaid that put many companies and agencies twirling like the Tasmanian Devil on Red Bull. The federal regulations ambiguously placed the definition to be determined by the state where the employee resides. Other federal agencies came out to modify this language to base the definition of a spouse on the ‘state of celebration’ where an employees union took place. However, the FMLA party house had a game of limbo going that just didn’t seem to have an end in sight.

Fast forward a mere 618 days, February 25, 2015, the Department of Labor will issue a final rule to move from “state of residence” to “place of celebration” when considering the validity of a spousal relationship. Given there are now 37 states with same-sex marriage laws, this decision was likely inevitable, even if a bit overdue.

Let’s break it down.

The Basics:

  • The definition of spouse until March 26, 2015 = a husband or wife as defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage…
  • The definition of spouse ON and AFTER March 27, 2015 = a husband or wife as defined or recognized under State law for purposes of marriage based on the state of celebration in which the marriage was entered into. This includes common law marriage, opposite-sex marriage and same-sex marriage. Additionally, this includes marriages entered into outside the United States, if they could have been entered into in at least one state in the U.S.

The Ya, but…:

  • Communicate communicate communicate!! If you have employees who have been denied future leaves which will be impacted by this change, ensure that a company communication places the responsibility back on their shoulder to get back in touch with the necessary supporting staff.
  • Review review review!! If you currently have approved state FMLA leaves for one of these relationships that were denied federal FMLA prior to this decision, but will qualify for FMLA as of March 26th, ensure you designate the federal FMLA time and inform the employee in writing, as directed in 825.300(d).
  • If your organization does not request proof of relationship documentation for opposite-sex couples, then it is imperative that you afford all other types of valid relationships the same process.
  • I cannot stress this enough, ensure there is a process in place where all employees, regardless of the family relationship, understand their rights and responsibilities.
  • Do not let the pendulum swing too far the other way. If you suspect a fraudulent situation with a same-sex couple or one claiming common-law, you have the right and the obligation to respectfully investigate further and inquire with the employee. Granting an employee more than they are entitled to is equally discriminatory to other members of your company, as not granting rights to those who are entitled.
  • The definition of ‘Common Law Marriage’ being clear or ambiguous at the state level is now the challenge – not too bad, all things considered.

Yes, seriously, the DOL finally made a change that actually resulted in an FMLA process being less complicated to administer. Well, OK, so there is going to be a bit of a sketchy transition period, but as they say “it’s always darkest before the dawn.” So, whether you’re working with Ward & June, Ross & Rachel, or Mitchell & Cam, the FMLA has made a clear step toward support of the modern family.


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