The Department of Labor issued a final rule yesterday that extends FMLA protections to eligible employees in same sex marriages so long as the marriages are legal where the ceremonies were performed. This is the so-called “place of celebration” rule. The former rule authorized FMLA spousal leave only if same-sex marriage was valid in the employee’s state of residence (i.e. “state of residence” rule). Under the new place of celebration rule, if an eligible employee is married in a state that authorizes same-sex marriage, FMLA spousal leave is permitted even if same-sex marriage is not valid in the employee’s state of residence.
The issue of whether the FMLA permitted same-sex spousal leave arose after the United States Supreme Court ruled in United States v. Windsor, 133 S.Ct. 2675, 2693 (2013), that the Federal definition of marriage excluding same-sex marriage was unconstitutional. Courts had held that the Federal definition of marriage applied to FMLA spousal leave, even though the FMLA regulations stated the state’s law of the employee’s residence applied to determine the validity of the marriage. Since Windsor found the Federal definition of marriage unconstitutional, the FMLA definition of “spouse” applied. Many commentators were dissatisfied with the FMLA place of residence rule because Continue reading