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FMLA and DOMA: What Same Sex Married Couples Need to Know

Another victory for same sex married couples, but first a little history.  In 2013, the Supreme Court, in U.S. v. Windsor, 570 U.S. 12 (2013) struck down section three of the Defense of Marriage Act as unconstitutional as it limited marriage and spouse to the legal union between one man and one woman as husband and wife, or rather, only opposite-sex couples. This decision had a major impact on the Family Medical Leave Act (FMLA), which allows eligible employees to take unpaid, job protected leave for certain specified family and medical reasons.

Prior to Windsor, the FMLA regulations defined the term spouse as "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 in States where it is recognized" and consequently, same-sex couples were not entitled to leave under the FMLA even if they lived in a state that recognized same-sex marriages. However, with the Windsor decision came a slightly different reading of the same definition with the result being that same-sex couples could enjoy FMLA leave to care for a same-sex spouse but only if they resided in a state that recognized same-sex marriage. This new interpretation, although offering as much coverage as possible, still had broad implications. For example, if a same-sex couple was married in the state Pennsylvania, which now recognizes and allows same-sex marriage, but then moved to Georgia, a state where same-sex marriages are still banned, that couple would not have been entitled to the protections afforded by the FMLA. This limitation really impacted not only coverage under the FMLA, but also a couple's mobility.

In June of 2014, as a response to U.S. v. Windsor, the Department of Labor adopted a proposed rule that would modify the definition of spouse by not taking the location of a couple's residence into account. A final rule, commonly referred to as the "place of celebration" rule, was subsequently issued on February 25, 2015 and took effect on March 27, 2015. What does this final rule mean for same sex married couples? Well, under the FMLA a spouse is now defined as "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 in States where it is recognized." 29 C.F.R. 825.113(a). The new rule also includes a valid marriage entered into outside of the United States if it could have been entered into in at least one state. Today, all legally married couples are able to enjoy leave under the FMLA no matter where they live.

If you need assistance with a family law issue, contact the experienced attorneys at McMorrow Law today at 724-940-0100.

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