The Department of Labor has proposed a rule change that would affect the definition of “spouse” under the FMLA to be inclusive of same sex couples who live in states where their marriage is not recognized. Currently, the statute defines “spouse” as a husband or wife, as recognized in the state where the employee resides, including common law marriages where recognized by the state. The proposed rule change comes as a response to last summer’s U.S. Supreme Court decision in U.S. v. Windsor and would expand the definition to include same sex marriages that are legal in the “state of celebration,” or the place where the marriage ceremony was performed. This would allow, for example, a same sex couple living in Ohio (where same sex marriage is not currently recognized) coverage under the FMLA as any other legally married opposite sex couple, so long as their marriage was performed in a state where such marriage was legal.
The FMLA and benefits to same sex couples are topics which will be discussed at Bugbee & Conkle’s upcoming seminar on September 25, 2014. Register here or contact our office at 419-244-6788