Effective March 27, 2015, the definition of “spouse” under the Family Medical Leave Act (FMLA) will include legal same-sex and common-law marriages, as long as the couple were legally married in the state where the marriage was entered into. Previously, the regulatory definition of spouse only allowed people to take leave to care for a spouse if they resided in a state that recognized the marriage.
The new “place of celebration rule” allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons related to medical and military needs. Some of these rights belong to employees with spouses suffering serious health conditions or those in the military (or formerly injured service members). Previously, employers with employees in states that did not recognize same-sex marriages were not required to grant the leave and job protections, even to couples married in states that do. The changes now require granting the leave and job protections if the marriage was celebrated in a place where same-sex marriage is legal. The change also applies to common-law marriages entered into in states where such unions are recognized.
Employers subject to the FMLA should recognize that the changed regulatory definition requires compliance wherever located, based upon the legality of the marriage where entered into, whether same-sex, opposite sex, or common-law. This means they will need to examine their forms for compliance, and be ready to recognize all of the relationships that may be affected, including children and step-children of same-sex and common-law spouses.
As a practical matter, employers seldom investigate whether claimed marriages are valid and have little cause to do unless there are inconsistencies in what an employee claims (e.g., employees claiming to be single on retirement plans now claiming to be legally married for FMLA). Very few verify the legality of common-law marriages of other states. Further, since marital status is a protected class in Nebraska, employers are actually discouraged from asking about marriage at all, except as necessary for handling benefits. Because of the risks involved, employers should consult their attorney before they consider making inquiry into claimed marital status.