Regulations for FMLA in Accordance to the Same-Sex Marriage Ruling

Supreme Court ruling on same-sex marriage solidifies DOL’s final ruling on FMLA leave
On Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution and that the Constitution requires (i) all states to permit marriage between same-sex couples, and (ii) all states to recognize marriages performed in other states, including those between same-sex couples.

Earlier this year, the Department of Labor issued a final ruling that allowed an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status. Fourteen states did not recognize same-sex marriage and four of the states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage and it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that all employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons. The DOL has not yet issued any guidelines on enforcement, but employers in these four states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What do employers need to do Now?

  1. Review FMLA policies and forms.
  2. Train supervisors and administrators on the new rule.
  3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.
  4. Understand that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

Achilles Group is always available to help your organization stay compliant and up to date. To see how we can help you, please call 281-469-1800.

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