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April 6, 2015

FMLA Updates Redefine Spouse

Filed under: General HR Buzz8:29 am

same sex

by Emily Sternberg, HR Consultant

In 2013, the Supreme Court struck down section 3 of the Defense of Marriage Act, ruling it unconstitutional. As a result of this ruling, many federal statutes have been reviewed to determine if this ruling has any implication on the interpretation of the act. The most recently updated law is the Family Medical Leave Act. Under the new law, the definition of spouse has been changed to reflect all legally married same sex spouses, regardless of the state in which they currently reside. This is referred to as the “place of celebration” rule, rather than the previously used “state of residence” rule.

In practice, this enables all same sex spouses, who were legally married in a state that recognizes same sex marriage, to take Family Medical Leave to care for their spouse or family member regardless of the state in which they currently reside. This final rule’s definition of spouse includes lawfully recognized same sex and common law marriages and marriages that were validly entered into outside of the United States, if the marriage could have been entered into in at least one state.

What does this mean in practice for administrators of the FMLA?

  1. Lawfully married same sex partners will be able to take leave under the FMLA to care for their own or their spouse’s serious health condition.
  2. Lawfully married same sex partners will be permitted up to 26 weeks of leave to care for a partner injured or suffering an illness as result of a military action.
  3. Eligible employees will also be able to take leave to care for their step-child (natural or adopted child of the employee’s same sex spouse)
  4. Eligible employees will be able to take leave to care for a step-parent who is the same sex spouse of the employee’s parent.

In order to be considered a covered employer under the Family Medical Leave Act, the employer must meet the following criteria:

  • private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year;
  • public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period:

  • for the birth of the employee’s child and for bonding with the newborn;
  • for the placement of a child with the employee for adoption or foster care and for bonding with the newly-placed child;
  • to care for the employee’s spouse, son, daughter, or parent with a serious health condition; or
  • When the employee is unable to perform the essential functions of his or her job due to the employee’s own serious health condition.

If your company is required to follow the provisions of the Family Medical Leave Act, it is highly recommended that human resource practitioners update their handbooks and policy manuals to reflect the updates to the statute.

For more information or to read the Department of Labor fact sheet, click on http://www.dol.gov/whd/fmla/spouse/factsheet.htm

 

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