Reviewing FMLA Requirements After the Dust Settles on Same Sex Marriage Law

Document created by 1002070 on Jul 17, 2015Last modified by 1002070 on Mar 10, 2017
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Pat Rountree.jpgThe Supreme Court ruling that same-sex marriage is legal under federal law puts an end to the confusion caused by various state laws prior to the ruling that varied in their stance on recognizing same-sex marriage.  While we are sure everyone is aware of the federal legalization of same-sex marriage, it may be helpful just to address how that decision changes prior guidance on FMLA.


Same-sex marriages are legal and must be treated as such under FMLA (regardless of the state of residence or state of celebration under state laws prior to the Supreme Court ruling).


According to the US Department of Labor, all FMLA eligible employees in same-sex marriages will be able to:

  • take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition,
  • take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service,
  • take military caregiver leave for their lawfully married same-sex spouse
  • take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met.
  • take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.


Some things that were not changed by the ruling but that bear stating again for clarification:


  • Common law marriages are legal for FMLA purposes if performed in a state that recognizes common-law marriage.  Common law marriage is not recognized in North Carolina, but if a couple moves to North Carolina from a state that recognizes it as a legal marriage, North Carolina will honor that as a legal marriage.  So far, states still have the right to make that determination.


  • The revised regulatory definition of spouse encompasses individuals in a same-sex marriage entered into outside of the United States as long as the marriage is valid in the place where it was entered into.


  • Civil unions are not considered legal marriages under the FMLA. Therefore, employees in same-sex civil unions, as well as opposite-sex civil unions, are not guaranteed the right to take FMLA spousal leave nor do they have other protections of the Act, including from retaliation.


  • Domestic partners are not covered under FMLA.


Should you have any questions or require further clarification how these requirements impacts your business, please give our Advice & Resolution team a call !