21st Oct 2015

Although there is an ongoing debate about whether sexual orientation is a protected class subject to protection from discrimination, harassment, and retaliation under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, there is at least one area of federal law where rights and protections have been extended to employees regardless of their sexual orientation. Earlier this year, the United States Department of Labor’s Wage and Hour Division issued a Fact Sheet amending the definition of spouse in the Family and Medical Leave Act (“FMLA”).

According to the DOL, the rule change has two major features: (1) the previous “state of residence” rule, which based the definition of spouse on the law of the state where the employee resided, has been replaced with a “place of celebration” rule. As a result, the law of the state in which the marriage occurred, as opposed to the law of the state in which the employee resides, now controls the analysis which means that persons who are legally married in any state are subject to coverage under the FMLA regardless of whether their marriage would be permitted under the laws of their state of residence; and (2) the definition of spouse now expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state. Basically, if someone is legally married somewhere, they are legally married everywhere for purposes of the FMLA. These changes bring the FMLA in line with the Supreme Court’s decision in United States v. Windsor.

So what does this mean for LGBT employees? Essentially, it means all eligible employees, regardless of the sex of their spouse, now enjoy the same rights under the FMLA. Employees can now take job-protected FMLA leave to care for their legally married same-sex spouse with a serious health condition; they can take qualifying exigency leave due to their legally married spouse’s covered military service; they can take military caregiver leave to care for their legally married spouse; they can take FMLA leave to care for their stepchild (the child of the employee’s same-sex spouse); and they can take job-protected leave to care for a stepparent regardless of the sexual orientation of the stepparent and their stepparent’s spouse.

For more information on these changes, please visit: http://www.dol.gov/whd/fmla/spouse/factsheet.htm

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