The Department of Labor (DOL) has now changed their interpretation of who is a “spouse” under the Family and Medical Leave Act (FMLA). Instead of looking at the law of the state in which the couple lives, people in same-sex or common law marriages will be considered spouses under FMLA if the employee’s marriage is lawfully recognized by the state where the same-sex or common law marriage took place. The regulation incorporating this new interpretation goes into effect on March 27, 2015
This adoption of the “state of celebration” principle will allow more employees to access such FMLA privileges as taking take time off to care for their ill spouses, to take time due to exigent circumstances created by their spouse’s military obligations, and take leave to care for stepchildren with serious medical condition.
This new definition is part of the DOL’s response to the landmark Supreme Court decision in United States v. Windsor, 570 U.S. 12 (2013), which invalidated a portion of the Defense of Marriage Act (DOMA) that restricted the definition of marriage for purposes of federal law to opposite-sex marriages.
What Does This Mean for Minnesota Employers?
Minnesota has legally recognized same-sex marriages since 2013 so Minnesotans in same-sex marriages would see no real impact of this new interpretation unless they live in other states that do not recognize same-sex marriage. However, Minnesota does not recognize common law marriage, so Minnesotans who previously entered into a common law marriage in a state that still recognizes it are now considered spouses in regard to FMLA. Of course, Minnesota employers with employees residing in other states must be sure that their FMLA determinations are based on where the law of the state where the employee was married rather than where they live and/or work.
The new rule may require some inquiry by the employer whenever an employee is claiming protected FMLA leave based on spousal status. The DOL webpage answers a key question about what, if any, documentation an employer may require to verify a valid same-sex or common law marriage? The DOL affirms that employers are still permitted to require “employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship.” An employee must be given the opportunity to satisfy the request through formal documentation such as a license or court document, or through a personal statement asserting the qualifying relationship and location of marriage. It is important for employers to remember that the employee determines what form of proof to submit. Adopting a consistent policy regarding requiring proof will be essential for employers to maintain non-discriminatory administration of FMLA leave.