FMLA rights and same-sex couples: rule to extend coverage

By Matthew Marks on June 20th, 2014 in Family Medical Leave Act (FMLA)

One of the most important threads in this blog is the protections granted to employees under federal law by the Family and Medical Leave Act (FMLA).

Most recently, in our June 3 post, we noted the role that FMLA can play in protecting against pregnancy discrimination. Those rights generally allow employees to take up to 12 weeks of unpaid leave to care for a close family member without losing their jobs.

In today’s post, we will discuss the rule that the Obama administration is expected to announce today on FMLA benefits for same-sex married couples.

There has been a remarkable trend in the last few years toward the legalization of same-sex marriage. According to Governing magazine, a respected source for information about state and local government, the number of states that have legalized same-sex marriage now stands at 19, plus the District of Columbia.

New York is not one of those states.

But what the Obama administration is expected to announce today will apply in all 50 states. Under current law, if a legally married couple lives in a state that has legalized same-sex marriage, FMLA rights apply.

But what if a legally married couple lives in a state where same-sex marriage has not been legalized? For example, what if a same-sex couple was married in New Jersey and then moved to New York?

Under the rule change that will be announced today, the Department of Labor – at President Obama’s direction – will extend the application of the FMLA rule throughout the U.S. – even to states that have not made same-sex marriage legal.

To be sure, the Labor Department rule must go through the usual formal rule-making process required for federal rules. But the president has now made clear what the administration’s position is.

Source: Reuters, “Obama extends family leave rights of gay couples,” Mark Felsenthal, June 20, 2014