Changes-Ahead.jpgThe U.S. Department of Labor (DOL) is accepting comments on extending coverage of the federal Family and Medical Leave Act (FMLA) to same-sex couples.

This extension is in response to the Supreme Court ruling that federal benefits cannot be limited based on a definition of marriage as a union between one man and one woman, which was reached last year in United States v. Windsor, 133 S. Ct. 2675 (2013). That case found the federal Defense of Marriage Act’s definition of marriage unconstitutional for treating same and opposite-sex couples differently under federal law.

The full text of the Notice of Proposed Rulemaking (NPRM) and additional information about the procedure for submitting comments is available at this link to DOL’s website.  Comments must be received on or before August 11, 2014.

Under the FMLA, eligible employees are entitled to unpaid leave for family, medical and military-related reasons. However, an employee in a same-sex marriage may not be eligible to take FMLA leave to care for a partner, a partner’s child or a partner’s parent with a serious health condition. This would change under the DOL’s proposed rule in that same-sex marriages are given equal access to FMLA benefits currently enjoyed by opposite-sex marriages.

Interestingly, in determining the legal status of “marriages” and qualification for leave benefits under the FMLA, the DOL’s proposed rule adheres to state law where the couple was married and not their current state of residence. The DOL’s reasoning for this determination is to ensure equal protection for all valid marriages under federal law. The rule change provides married same-sex partners with leave to care for a spouse or a child or parent of the employee’s spouse.

For more information about and complying with the FMLA, contact employment attorney Jason Shinn.