FMLA Expands to Include More Employees in Same-Sex Marriages

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FMLA Expands to Include More Employees in Same-Sex Marriages

In its 20 plus years on the books, administration of the Family and Medical Leave Act (FMLA) has long been viewed as a complicated and challenging task faced by employers of all shapes and sizes – or at least for those with 50 or more employees.

Despite seemingly countless revisions since its inception, FMLA has become an integral part of US employment law and, despite administrative challenges, has provided families and individuals with previously unimaginable opportunities to take time away from work to care for loved ones without fear of losing their jobs.
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DOL Proposes to Revise FMLA Definition of "Spouse"

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By March 2014 the Wage and Hour Division at the Department of Labor (DOL) will issue a proposal to revise the Family and Medical Leave Act (FMLA) definition of “spouse” based on the Supreme Court’s decision in United States v. Windsor, the agency promised in its Nov. 26, 2013, regulatory guidance.

In Windsor, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA), which defined “marriage” and “spouse,” was unconstitutional. The court said: “The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

Windsor does not obligate states to recognize same-sex marriages performed in other states, which can be confusing for employers. “It is possible—and preferable from my perspective—that the DOL do away with this confusion and implement a ‘place of celebration’ rule, which would mean the DOL no longer looks to state of residence but to whether the same-sex marriage was valid where performed. This would be a big departure from the current regulations but resolve the challenges employers face in implementing constantly changing state recognition rules.”

Supreme Court Case Update

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The Supreme Court issued three decisions in July, 2013 that affect employers. Here are the details your organization needs to know about the Court's rulings.

Defense of Marriage Act (DOMA) is Unconstitutional

The Supreme Court struck down the federal Defense of Marriage Act (DOMA) in United States v. Windsor on June 26th, 2013. Specifically, the Supreme Court, in a 5-4 decision, deemed that section 3 in DOMA is unconstitutional as it deprives individuals of equal liberty protected in the Fifth Amendment.
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