In a final ruling, the Department of Labor has enabled workers in legal same-sex marriages to take job-protected leave, under the FMLA, to care for seriously ill spouses, even if the state in which the couple resides does not recognize same-sex marriage. Previously, married same-sex couples received FMLA protection only if they resided in a state that recognized same-sex marriage.
The change was the result of the Supreme Court’s decision in United States v. Windsor, in which the Court struck down the Defense of Marriage Act provision that interpreted marriage and spouse to be limited to opposite-sex marriages for the purpose of federal law. The Department of Labor has now moved from “state of residence” to the “place of celebration” rule for the regulatory definition of spouse in 29 §§ CFR 825.102 and 825.122(b). The new definition will look to the law where the couple was married rather than the law where they reside. This will allow all legally married same-sex couples to have “consistent federal rights regardless of where they live.”
As of February 13, 2015, 32 states and the District of Columbia allow same sex couples to marry. The ruling took effect on March 27, 2015.
