The DOL just cracked the floodgates open … to the tsunami of post-DOMA regulations.
It just issued the first regulatory guidance in reaction to the Supreme Court’s decision to strike down the clause under DOMA that stated a “spouse,” for federal law purposes, must be a member of the opposite sex.
It came in the form of a fact sheet (#28F), which specifically outlines the reasons a person may qualify for FMLA leave.
This is the first of several regulatory changes the DOL has said it’ll issue in response to the High Court’s ruling, which provides same-sex spouses in legal marriages access to more than 1,000 federal benefits.
Most of the document restates what employers already know: Employees can take up to 12 workweeks of job-protected leave in a 12-month period to care for and bond with a new child, treat a serious medical condition, and care for a spouse, son or daughter with a serious medical condition.
One major change
The one big change from existing regs is that the fact sheet specifically spells out who qualifies as a spouse.
According to the Fact Sheet “spouse” means 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 and same-sex marriage.
Up until now, many employers had already assumed the High Court’s ruling automatically made employees eligible to take FMLA leave to care for a same-sex spouse with a serious medical condition — assuming the spouse resided in a state that recognized same-sex marriage.
But this clarification by the DOL makes that assumption official.
Another wrinkle to keep in mind
Currently, there are 13 states (plus Washington, D.C.) that recognize same-sex marriage, but the FMLA’s new definition of spouse may still extend beyond those boarders.
On July 29, a federal court in Philadelphia ruled that FMLA eligibility could also extend to those whose same-sex spouse resides in a state that recognizes same-sex marriages that were performed in other jurisdictions.
So you need to not only know if your state recognizes same-sex marriage performed in-state, but also those performed out-of-state.
The court’s ruling also reiterated another important facet of the law: The state in which your company resides has no bearing on an employee’s FMLA eligibility to care for a same-sex spouse. The only thing that matters is the spouse’s official state of residence.
Now, that’s not to say your company can’t offer FMLA leave to an employee looking to care for a same-sex spouse who resides in a state that doesn’t recognize their marriage. The FMLA says you’re allowed to offer benefits above and beyond the law’s requirements. It just establishes the bare minimum requirements employers have to comply with.
Federal employees granted expanded access
Around the same time the DOL was prepping the latest fact sheet, the U.S. Office of Personnel Management said in a memo to federal employees that it would extend benefits to all federal workers in legal same-sex marriages.
In the memo, Labor Secretary Tom Perez advised the heads of agencies within the DOL “to look for every opportunity to ensure that we are implementing this decision in a way that provides the maximum protection for workers and their families.”