Labor & Employment Law Blog

On February 23, 2015 the Department of Labor (“DOL”) announced it will revise regulations defining spouse under the Family Medical Leave Act (“FMLA”) to recognize same-sex marriages regardless of state of residence.  These changes will take effect on March 27, 2015.

The change comes in response to the United States Supreme Court’s decision in United States v. Windsor issued on June 26, 2013.  In a 5-4 decision, the Court found Section 3 of the Defense of Marriage Act (1 U.S.C. § 7) to be unconstitutional in that it deprived equal liberty of persons provided by the Fifth Amendment.  This deprivation resulted from denying federal recognition of the right of same sex couples to marry, while at the same time fully recognizing and defining the right to marry as a right of heterosexual couples.

In response to the Court’s decision in Windsor, the DOL began to recognize and afford same-sex couples FMLA benefits in limited circumstances through the adoption of a “residence-rule” approach.  Under the “residence-rule,” if same-sex couples were legally married and resided in a state that recognized same-sex marriage, they met the definition of a “spouse” under the FMLA and were entitled to benefits.  However, same-sex couples who were legally married but resided in a state that did not recognize same-sex marriage would not have been eligible for FMLA benefits.  This led to a patchwork of different standards for eligibility depending on where an employee resided.

The DOL’s most recent revision to its interpretation of the term “spouse” for the purpose of determining FMLA benefits will expand coverage by eliminating the residence-rule.  As stated in its revision to 29 CFR § 825, the “Department is moving from a state of residence rule to a rule based on the jurisdiction where the marriage was entered into (place of celebration) to ensure that all legally married couples, whether opposite sex or same sex, will have consistent federal family leave rights regardless of where they live.”  As a result, same-sex couples who are legally married but reside in a state that does not recognize same-sex marriage will be entitled to FMLA benefits.

In California, FMLA-eligible employees are generally also eligible for California Family Rights Act (“CFRA”) leave.  Same-sex spouses have been eligible to take CFRA leave for their spouses since June 2013, through a complicated series of court cases and appeals.

The issue of same-sex marriage arose in the In re Marriages cases, 43 Cal.4th 757 (2008), in which the California Supreme Court struck down as unconstitutional, statutes that limited marriage to a man and a woman. This allowed same-sex couples to marry, after May 15, 2008. Less than six months later, Proposition 8 amended the California Constitution to provide that marriage was a union between a man and a woman, halting same-sex marriage in California.

A federal district court declared Proposition 8 unconstitutional in 2010.  Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal., 2010).  The case eventually worked its way up to the U.S. Supreme Court, which on June 26, 2013, held that proponents of Proposition 8 lacked standing to challenge the appeal on behalf of the state, meaning the district court’s decision remained valid. Hollingsworth v. Perry, 570 U.S. ____ (2013).

California statutes and regulations are being amended to reflect the court decisions.  Current CFRA regulations define spouse as “a partner in marriage as defined in Family Code Section 300.”  Senate Bill 1306 (2014), effective January 1, 2015, removed language from the Family Code that only marriage between a man and a woman is valid or recognized in California.  In addition, effective July 1, 2015, CFRA regulations will be amended to read “As used in this article, “spouse” also means a same-sex partner in marriage.”

Thus, in California, same-sex couples who are legally married will be eligible for both FMLA and CFRA benefits starting March 27, 2015.  Additionally, employers covered by CFRA must provide CFRA leave for their employees to care for a domestic partner with a serious health condition or for the child of that domestic partner.  Federal law still does not extend coverage to domestic partners.

What this means for employers

In light of the shift in the DOL’s interpretation of the meaning of the term “spouse” for purposes of FMLA coverage, employers would be well-served reviewing and revising their FMLA practices and policies to ensure compliance with the new interpretation from the DOL.