by Sarah B. Wheeler
Immediately following the Supreme Court’s decision in U.S. v. Windsor,[1] the Department of Labor (“DOL”) indicated that the Family and Medical Leave Act (“FMLA”)[2] would, from that day forward, be inclusive of employees who requested leave to care for a same-sex spouse, parent of that same-sex spouse, or other related family member.[3] Initially, however, the DOL extended this coverage only to employees who currently resided in states where same-sex marriage was legal.[4] Referred to as the “state of residence” rule,[5] this meant that if the employee moved to a state where same-sex marriage was not recognized, that employee would no longer have the right to access their benefits under the FMLA[6] on the same basis.
The DOL, however, has taken an inconsistent approach as to when it applies the “state of residence” versus the “place of celebration” rule.[7] Since September 2013, the DOL has applied the “place of celebration” rule when determining Employee Retirement Income Security Act (ERISA) benefits, but not when determining FMLA benefits.[8] When interpreting the word “spouse” under the FMLA, the DOL applies the “state of residence” rule.[9] The ostensible reason that the DOL provided[10] for not applying the “place of celebration” rule was that this was the extent of the coverage that could be allowed without receiving further “administrative or judicial guidance.”[11] However, even in the absence of any further guidance, the DOL nevertheless announced on February 23, 2015 that it would be applying the more expansive “place of celebration” rule when considering the definition of “spouse” under the FMLA.[12] The effective date for the final rule is March 27, 2015.[13]
In the interim, this inconsistency has likely resulted in a deprivation of benefits for a number of employees who sought and were denied FMLA coverage on this basis. One of the key effects of the change[14] will be that now couples like Todd and TR, a same-sex couple legally married in Minnesota in 2013 who recently adopted a son, Camden, will be able to take FMLA leave to care for each other, not just for their son.[15] While the couple “were able to take unpaid, job-protected leave to care for Camden – a protection guaranteed by the [FMLA – until the effective date of the new final rule,] they might have been denied that same protection if they wanted to take job-protected, unpaid leave to care for one another.”[16]
The final rule will also affect those employees in legal same-sex marriages who wish to take FMLA leave to care for his or her stepchild.[17] Previously, a similarly situated employee could only take FMLA to care for his or her stepchild if that employee stood in loco parentis for that child.[18] Now, beginning March 27, 2015, the employee will be able to take FMLA for the stepchild even if they never stood as their effective guardian or in the place of the child’s parent.[19]
What remains to be seen is if legally married same-sex couples who had requested FMLA leave and were denied it on that basis in the interim between the Windsor decision and the March 27, 2015 effective date of the DOL’s final rule under the FMLA, will be determined to have a compensable cause of action for unjust deprivation of benefits.
[1] 133 U.S. 2675 (2013).
[2] Family and Medical Leave Act, United States Department of Labor, http://www.dol.gov/whd/fmla/ (last visited Mar. 8, 2015) (hereinafter “FMLA”).
[3] See News Release: Federal Job-Protected Family and Medical Leave Rights Extended to Eligible Workers in Same-Sex Marriage, United States Department of Labor (Feb. 23, 2015), http://www.dol.gov/opa/media/press/whd/WHD20150285.htm.
[4] See Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (hereinafter “Fact Sheet #28F”), United States Department of Labor 2 (Aug. 2013), http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf.
[5] Frequently Asked Questions: FMLA Notice of Proposed Rulemaking, United States Department of Labor, WHD, http://www.dol.gov/whd/fmla/nprm-spouse/faq.htm (last visited Mar. 8, 2015) (follow “Question #4” hyperlink); see also Family and Medical Leave Act: Final Rule to Revise the Definition of “Spouse” Under the FMLA, United States Department of Labor, http://www.dol.gov/whd/fmla/spouse/ (hereinafter “Final Rule to Revise the Definition of ‘Spouse’”) (last visited Mar. 8, 2015).
[6] FMLA, supra note 2.
[7] News & Knowledge: DOL’s Inconsistent Approach: Same-Sex Spouses Covered by FMLA Depending on State Residency, Troutman Sanders, http://www.troutmansanders.com/dols-inconsistent-approach-same-sex-spouses-covered-by-fmla-depending-on-state-residency-12-19-2013/ (last visited Mar. 8, 2015) (“Unlike other federal agencies, the DOL has taken an inconsistent approach in providing guidance for the FMLA and ERISA.”).
[8] See Fact Sheet #28F, supra note 4.
[9] See id.
[10] See id.
[11] See The White House, Statement by the President on the Supreme Court Ruling on the Defense of Marriage Act (June 16, 2013), http://www.whitehouse.gov/doma-statement (directing the Attorney General “to work with other members of [President Obama’s] Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, [are] implemented swiftly and smoothly.”).
[12] See Final Rule to Revise the Definition of “Spouse,” supra note 5.
[13] See Fact Sheet: Final Rule to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations, United States Department of Labor 1 (Feb. 2015), http://www.dol.gov/whd/fmla/spouse/factsheet.pdf (As of the date of this blog post, the full text of the rule has not been made available yet by the Department of Labor.).
[14] See News Release, supra note 3.
[15] See Thomas E. Perez, FMLA Updated for a Modern Family, Huffington Post (Feb. 23, 2015, 1:16 PM), http://www.huffingtonpost.com/thomas-e-perez/fmla-updated-for-a-modern_b_6737096.html; see also Tom Perez, FMLA Updated for a Modern Family, U.S. Department of Labor Blog: Promoting & Protecting Opportunity (Feb. 23, 2015), http://blog.dol.gov/2015/02/23/fmla-updated-for-a-modern-family/.
[16] See id. (stating that two years prior in 2011, the couple had a private ceremony and gained civil union status in Illinois, where they had moved for Todd’s work, but wed in Minnesota after same-sex marriage became legal in 2013.).
[17] See New FMLA Regulations Expand Definition of Spouse and Include Same-Sex Spouses, Jackson Lewis (Feb. 25, 2015), http://www.jacksonlewis.com/resources.php?NewsID=5083.
[18] See id.
[19] See Shira Forman, DOL Issues Final Rule Amending FMLA Definition of “Spouse” to Include Same-Sex Marriages, Labor & Employment Law Blog (Feb. 27, 2015), http://www.laboremploymentlawblog.com/2015/02/articles/leaves-of-absence/dol-issues-final-rule-amending-fmla-definition-of-spouse-to-include-same-sex-marriages/#more-2239.
The L•E•Jer 