On February 25, 2015, the U.S. Department of Labor (DOL) extended its definition of the term “spouse” under the Family and Medical Leave Act (FMLA) to include members of a legally recognized same-sex marriage. This revision follows the United States Supreme Court decision in United States v. Windsor, holding a section of the Defense of Marriage Act (DOMA) unconstitutional. Windsor has already made itself felt in the area of employee benefit plans, and now the FMLA regulation defining “spouse” has changed.

Under the new regulation, the analysis of whether same-sex couples  are legally recognized and have FMLA rights as spouses has shifted from a “state of residence” to a “place of celebration” standard. This means that employers should not look to where the same-sex couple lives, but where they married, to determine their right to FMLA leave as a spouse. As of February 13, 2015, 32 states and the District of Columbia had extended the right to marry to both same-sex and opposite-sex couples (this included Iowa and Minnesota, but not South Dakota, North Dakota, or Nebraska).

While human resources professionals likely saw this change coming, supervisors who work with employees and their requests for FMLA leave on a daily basis may need some updated training. This training should educate them on the definitional change so they do not mistakenly deny leave, suggest leave is not permitted, or otherwise discourage eligible employees from leave. All employers who are covered by FMLA should also review their handbooks, forms, and policies to make sure they are in line with this revised regulation. Finally, if employers provide updated training or revise policies, the employers should carefully document the training or distribution of the policies.

For assistance in training employees, in updating handbooks, forms, and policies, and general application of the FMLA, please contact our experienced Employment Law attorneys at 605-336-2880 or info@dehs.com.

Update – Is the New Rule In or Out?

Posted March 27, 2015

On March 26, 2015, a federal district court judge in Texas granted a motion filed by a group of 4 states’ attorneys general to block the U.S. Department of Labor’s plan to change its rule under the FMLA regarding treatment of same-sex couples. The Court also issued a stay of the Department’s rule, which was set to take effect on March 27, 2015.

Right now, this issue is fluid. If you have questions or would like legal advice on best practices in your FMLA policies and procedures, please contact one of our Employment Law attorneys, and we would be happy to work with you.

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.DEHS.com.

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