The Department of Labor (DOL) issued a final rule change to extend the Family and Medical Leave Act (FMLA) benefits to all married same-sex couples, which became effective on March 27, 2015.
The final change came nearly eight months after the DOL published a Notice of Proposed Rulemaking in June 2014 to revise the definition of the term “spouse” under the FMLA. The proposed change came on the heels of the Supreme Court of the United States decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act to be unconstitutional.
The DOL previously defined the term “spouse” narrowly, omitting reference to same-sex married couples and utilizing the “state of residence” rule, which is based on the definition of marriage in the state the married couple resides. This posed a serious problem for married same-sex couples residing in non-marriage equality states needing to avail themselves to FMLA protections.
The final ruling, which defines the term “spouse” for purposes of the FMLA, includes reference to same-sex couples and utilizes the “state of celebration” rule, which is based on the definition of marriage in the state or country the marriage was lawfully entered into, no matter where the couple currently resides.
Private employers with 50 or more employees must comply with the FMLA, which allows eligible employees to take 12 weeks of unpaid leave, every 12 months, to care for a spouse, child or parent with a serious health condition. This includes the employee’s stepchildren, who may not have been legally adopted by the employee; an issue not specific to the LGBTQ community, but one that presents itself often.
When the final ruling was announced in February 2015, U.S. Secretary of Labor Thomas E. Perez said, “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss.”
The Supreme Court is slated to rule on the issue of marriage equality in June 2015, which will hopefully resolve issues that same-sex married couples living in non-marriage equality states still face. These include federal policies and regulations that define marriage based on the state of residence rule including, but not limited to: spousal Veterans benefits, social security benefits, and copyright ownership.
The DOL provided answers to sixteen frequently asked questions about the FMLA final ruling, which can be found here: http://www.dol.gov/whd/fmla/spouse/faq.htm.
Rosalind W. Sutch, CPA, MT, is a shareholder at Drucker & Scaccetti (D&S), a Philadelphia-based tax advisory firm. Roz leads D&S’s LGBT Tax Consulting & Financial Planning Practice Group and can be reached at rsutch@taxwarriors.com.
