Same-Sex Spouses Can Now Take FMLA Leave in All States

MegaphoneThe U.S. Department of Labor has announced that married same-sex spouses who are otherwise eligible will be able to take time off to care for each other under the Family and Medical Leave Act (FMLA), even if they don’t live in states that recognize their marriage. But same-sex parents should know one more thing about FMLA.

The FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.” The Department of Labor will issue a Final Rule tomorrow revising the FMLA’s definition of spouse to include same-sex couples married legally in any state or country, regardless of where they reside.

This is a great step forward that should help many individual families as well as underscore the silliness of inconsistent recognition of married same-sex couples. As the Department of Labor points, out, too, the new rule should “reduce the administrative burden on employers that operate in more than one state, or that have employees who move between states with different marriage recognition rules.” Win-win.

FMLA applies not only to spouses, however, but also to children (and one’s own parents). Same-sex parents should note that for several years now, it has been the case that if you are part of couple, whether married or unmarried, and one of you is not your children’s legal parent, both of you may still take FMLA leave to care for your kids (assuming you are otherwise eligible and work for a covered employer). See my post from 2013 on the subject (but note that I wrote it before the U.S. Supreme Court overturned part of the Defense of Marriage Act in 2013). FMLA covers care after birth, adoption, foster placement, or if the child has a serious health condition.

In an article at HuffPo about the new spousal rule, Labor Secretary Tom Perez uses a family with kids as an example, but doesn’t get into details of legal/non-legal parenthood. Still, it’s great that he’s viewing families with kids as one of the beneficiaries of the rule change. (Can we please, however, stop referring to LGBTQ couples and parents as “modern families”? As I keep saying, we’ve been around for a while.)

(I’m not an employment lawyer, however, so check with your company’s HR department and/or your own legal counsel if you need to take FMLA leave for any reason.)

Thanks, HRC!

1 thought on “Same-Sex Spouses Can Now Take FMLA Leave in All States”

Comments are closed.

Scroll to Top