Power

Same-Sex Spouses Get Job Protections, No Matter Where They Live

The Department of Labor announced a rule change that will expand FMLA protections for thousands of legally married same-sex couples.

The Department of Labor announced a rule change that will expand FMLA protections for thousands of legally married same-sex couples. Shutterstock

Workers in legal, same-sex marriages will now have the same federal job protections as those in opposite-sex marriages, regardless of where they live, thanks to a rule change by the U.S. Labor Department.

The change, announced this week, revises the Family and Medical Leave Act (FMLA) in light of the U.S. Supreme Court’s ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriages for purposes of federal law.

The FMLA guarantees some employees unpaid, job-protected leave for specified family and medical reasons.

The Labor Department’s rule change updates the FMLA definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides.

Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they reside recognizes such marriages.

Employees who will be covered by the rule change include those who work for a private sector employer with 50 or more employees; those who work for public agencies, including local and state governments regardless of the number of employees in that agency; and public or private elementary or secondary school employees.

The federal rule change means eligible employees in same-sex marriages can now do things like take FMLA leave to care for a spouse with a serious health condition as well as take military caregiver leave for their spouse.

“The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one,” U.S. Secretary of Labor Thomas E. Perez said in a statement announcing the rule change. “All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families—without the threat of job loss.”

The federal action comes as the Roberts Court weighs the constitutionality of statewide bans on marriage equality and as states like Mississippi seek to protect employers who discriminate against people who are LGBT by expanding so-called “religious freedom” bills.

The Department of Labor’s rule change takes effect on March 27.