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Dept. Of Labor Proposes Rules Expanding FMLA Leave to Same Sex Couples in All States

Currently the Family and Medical Leave Act only applies to same sex couples in states that recognize same sex marriage. However, last Friday The U.S. Department of Labor proposed a rule to extend the Family and Medical Leave Act's protections to all married same-sex couples regardless of whether the state they live in recognizes their marriage.

Why the change? We can thank the U.S. Supreme Court Decision in United States v. Windsor, which invalidated the section of the Defense of Marriage Act that had barred the federal government from recognizing same-sex marriages. Now that the feds are able to recognize such marriages, they can promulgate rules consistent with that decision.

"The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver," said Secretary of Labor Tom Perez. "Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families."

The DOL is looking to move from a "state of residence" rule to a "state of celebration" rule and revise the FMLA regulation defining the term "spouse." Thus if the marriage was legal in the state where it was entered into, then the FMLA will cover them regardless of the state in which they reside. (Thus same sex marriages celebrated in one of sixteen countries where it is legal would also be recognized as being covered by the FMLA).

The Department believes that a place of celebration rule will give fullest effect to the purpose of the FMLA to permit employees to take unpaid leave to care for a seriously ill spouse. The need to provide care for a spouse is the same for all married couples and does not change depending on their state of residence. Additionally, a place of celebration rule will provide consistent federal family leave rights for legally married couples regardless of the state in which they reside, thus reducing barriers to the mobility of employees in same sex marriages in the labor market. The Department believes such a rule will also reduce the administrative burden on employers that operate in more than one State, or that have employees who move between States with different marriage recognition rules; such employers would not have to consider the employee's state of residence and the laws of that State in determining the employee's eligibility for FMLA leave.

The new rule has gotten approval from the Office of Management and Budget but has yet to be published in the Federal Register, according to the DOL.

The state of New York does recognize same sex marriages, so the FMLA already covers employees here. Also, employees who work in New York City are covered by the New York Paid Sick Leave Law, which is broader than the federal law. Employees who work more than 80 hours a calendar year in New York City are covered by the paid sick leave law and accrue one hour of sick leave for every 30 hours worked, up to 40 hours in a calendar year. If their employer has five or more employees, they have the right to paid sick leave, and if the employer has fewer than five employees, they have the right to unpaid sick leave. The law covers full-time and part-time employees, transitional jobs program employees, undocumented employees, employees who are family members but not owners, and employees who live outside of New York City but work in the city. Covered domestic workers have the right to two days of paid sick leave after one year on the job, which is in addition to the three days of paid rest under New York State Labor Law.

Employees can use sick leave to care for themselves or a family member. Family members include child, grandchild, spouse, domestic partner, parent, grandparent, child or parent of a spouse or domestic partner, or sibling (including half, adopted, or step sibling).
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