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Definition of “Spouse” Under FMLA Amended to Include Same-Sex Couples

Wedding-rings-300x200A new rule issued by the Department of Labor (DOL) amends the Family Medical Leave Act’s (FMLA) definition of “spouse” to include same-sex couples married in states where same-sex marriage is legally recognized.

Under the new rule, codified at 29 C.F.R. § 825.102 and 825.122(b), two people are married for purposes of the FMLA if the jurisdiction in which they were married recognizes them as legally married. The old rule looked to the place of the couple’s residence, which meant that same-sex couples who resided in Georgia and Tennessee were not currently eligible for FMLA leave, even if they were married in one of the growing number of states that has legalized same-sex marriage.

The new rule also contemplates couples married outside the United States. A same-sex marriage or same-sex, common-law marriage originating in another country will be recognized under the FMLA so long as the couple could have been married or common-law married in at least one U.S. state.

The new rule grants legally married, same-sex couples who work for FMLA-covered employers the same rights that opposite-sex married couples have enjoyed since the passage of the FMLA in 1993. The rule change goes into effect on March 27, 2015.

All employers in the United States with at least 50 employees are subject to the FMLA, regardless of whether the state recognizes same-sex marriage or not.

Under the FMLA, a person is entitled to take unpaid leave from work for several reasons, including the birth of or caring for a newborn or adopted child, caring for a sick spouse, and treating a serious health condition. This leave is job-protected, meaning that an employer is required to allow the employee to return to work after the leave is complete. An employee is entitled to 12 weeks of such leave in a 12-month period.

The new rules do not affect the requirements that must be met in order to take FMLA leave. To qualify for the leave, an employee must have (1) worked for the employer for at least one year prior to the beginning of the leave, and (2) worked at least 1,250 hours in the year leading up to the leave. Further, the employer may request proof of the serious health condition from a medical provider, which must be provided within 15 days of the request.

The definition of a serious health condition is also unchanged. It includes any ailment that requires an overnight stay in the hospital, one that incapacitates a person for more than three consecutive days, certain chronic conditions, and all matters related to pregnancy.

If you are married and your spouse has a serious medical condition, you may be entitled to job-protected leave to care for him or her. The Atlanta employment law attorneys of Mays & Kerr can help you if your employer has violated your rights under federal law. To schedule a consultation with one of our attorneys, call 1-877-986-5529.

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