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same-sex-marriageThe United States Supreme Court has ruled in a 5-4 decision that same-sex couples have the right to marry anywhere in the United States. This decision just made life easier for employers and TPAs who are responsible for administering leaves. We can now uniformly apply the Family and Medical Leave Act’s (FMLA) definition of spouse (reflected below) regardless of where same-sex couples were married or reside, including in the states of Texas, Louisiana, Arkansas and Nebraska where a federal judge in Texas had previously placed an injunction on adopting the Department of Labor’s definition of spouse since these states did not recognize same-sex marriage.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

Reminders for employers:

  • Update FMLA policies if they currently include a detailed definition of spouse
  • Use caution in requiring proof of same-sex marriage if you do not require proof of marriage for opposite-sex spouses for purposes of taking leave
  • Train supervisors or anyone involved in the FMLA process of the change in definition as some employees will be entitled to FMLA protection where they were not in the past
  • Remember this change does not impact state leave laws that provide leave for Domestic Partners or Civil Union partners; while the employee would not be eligible to take leave under the FMLA (only applies to legal same-sex marriages), they still may be allowed leave under state law

Sharon Andrus, Director National Technical Compliance, Disability Administration

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