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Department of Labor Proposes Rule Change to Expand FMLA Coverage for Same Sex Spouses

On June 20, 2014, Secretary of Labor Tom Perez announced a proposed rule that would extend FMLA protections to otherwise eligible employees in same-sex marriages living in states that do not recognize such marriages. Presently, the FMLA’s definition of “spouse” only covers same-sex spouses living in states that recognize same-sex marriage. Under the proposed amendment, an individual in a legal same-sex marriage would be entitled to FMLA benefits even while living in a state that does not recognize same-sex marriage. The thrust of the amendment would permit opposite-sex and same-sex married spouses to enjoy the exact same FMLA rights, regardless of where they live.

The proposed amendment is consistent with the U.S. Supreme Court’s decision in United States v. Windsor. In Windsor, the Court struck down Section 3 of the Defense of Marriage Act, which limited the definition of “marriage” and “spouse” to people in opposite-sex marriages, as unconstitutional. Following Windsor, President Obama instructed his Cabinet members to review all federal statutes to ensure that they permit all federal benefits now available in light of that decision.