Summer 2014Shortly after the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act last year, we explained how changes to the same-sex marriage laws impact Pacific Northwest employers. Since then, Oregon has joined Washington and 17 other states, plus Washington, D.C., in recognizing same-sex marriages. These changes, along with the U.S. Department of Labor Wage and Hour Division’s (“DOL WHD”) newly proposed definition of “spouse” for purposes of the federal Family Medical Leave Act (“FMLA”), expand federal protected leave coverage to a greater number of employees.
The FMLA grants eligible employees unpaid, job-protected leave to care for a spouse, child, or parent suffering from a serious health condition. Last year, the DOL WHD adopted the “place of residence” rule to address whether otherwise eligible employees are entitled to take FMLA leave to care for their same-sex spouses. Under that rule, such employees were only eligible for FMLA leave if they lived in a state that recognized the same-sex marriage. For example, married employees with their place of residence in Washington and Oregon could take FMLA leave to care for their same-sex spouses, but married employees with their place of residence in Wyoming could not.
On June 27, 2014, the DOL WHD proposed to change its “place of residence” rule to the “place of celebration” rule. If adopted, the “place of celebration” rule will grant eligible employees federal FMLA leave to care for their same-sex spouses so long as their marriage is lawful in the jurisdiction in which it was entered. For example, an otherwise eligible employee who lives and works in Wyoming travels to Washington and enters into a lawful same-sex marriage. Under the “place of celebration” rule, when the employee returns home to Wyoming, he or she is entitled to take federal FMLA leave to care for his or her same-sex spouse (if the employer is covered by the FMLA), even though the employee lives in a state that does not recognize the marriage.
The DOL WHD’s proposed rule is consistent with the position of other federal agencies such as the Internal Revenue Service, DOL Employee Benefits Security Administration, and Department of Health and Human Services Center for Medicare and Medicaid Services. Public comments about the proposed rule will be accepted through August 11, 2014. DOL WHD will publish its final rule after the comment period has ended.
As a reminder, the FMLA leave entitlement only applies to same-sex couples who enter into lawful same-sex marriages. Couples in registered domestic partnerships, civil unions, or other similar relationships are not “married” under federal law and are therefore not entitled to federal FMLA leave rights.
 Currently, the following states, plus Washington, D.C., recognize same-sex marriages: CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, OR, PA, RI, VT, and WA.