Proposed changes to the FMLA redefine “spouse”

gay marriageOn June 27 the U.S. Department of Labor published a Notice of Proposed Rulemaking that will alter the Family and Medical Leave Act. This is something that everyone who has over 50 employees must pay attention to and be prepared to make the appropriate changes.

Major features of the notice

According to the USDOL announcement the major features of the proposed rule include:
Moving to the “place of celebration” model away from the place of residence model currently in use. This means that a same sex couple who have been married in a state that allows same sex marriages will have their marriage recognized for purposes of the FMLA.
The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
The new rule will change the definition of spouse to:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Where you can comment

This rule has been published in the Federal Register here and you have until August 11th to comment. If you have some input you would like to make now is the time to do it.

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