July 8, 2014

Same Sex Marriage and the Ever-Changing Landscape

Since the Supreme Court’s decision in the U. S. v. Windsor case last year, matters relating to same-sex marriage have continued to evolve.  Generally, marriage is defined by state law.  How states are defining marriage is evolving rapidly.  As of this writing, 19 states plus the District of Columbia define marriage without regard to gender.  Challenges to the definition of marriage are pending in many jurisdictions.  Generally, the challenge evolves around whether it is a violation of the Equal Protection clause of the Constitution to limit marriage to opposite sex couples.   It is possible that one or more of these matters will reach the Supreme Court next term. 

In addition, federal agencies continue to issue regulations and guidance relating to spouse, which for federal purposes, include both same and opposite sex spouse.

FMLA rights expanded for same-sex married couples 

In September, 2013, the DOL’s Wage and Hour Division who administers and enforces the Family and Medical Leave Act (FMLA) took the position that the state of residence of the same-sex couple dictates eligibility for FMLA purposes, i.e., the so-called ‘Rule of Residence’ wherein only same-sex couples residing in jurisdictions sanctioning same-sex marriage would be entitled to FMLA benefits. 

On June 27, 2014, the DOL issued a proposed rule that would adopt the ‘Rule of Celebration’ for purposes of FMLA entitlement and benefits.  The crux of this rule modifies the definition of spouse under the law such that eligible employees in a legal same-sex marriage are entitled to FMLA leave to care for their spouse or family member, regardless of where the couple lives.  This change would also apply to the military family leave provisions of the FMLA relating to qualifying exigency and caregiver leave.

Comments on the proposed rule must be submitted by August 11, 2014.  Additional information about the proposed changes can be accessed via Wage and Hour Division’s webpage



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