A soon to be effective U.S. Department of Labor (DOL) revision to the Family and Medical Leave Act (FMLA) regulations’ definition of “spouse” will change how Texas employers have to respond to same-sex-spouse-related leaves.
What the Definition of “Spouse” Has Been
Previously (after the U. S. Supreme Court decision finding the Defense of Marriage Act unconstitutional), DOL had said FMLA leave to care for a spouse would include one defined or recognized under state law for purposes of marriage in the state where the employee resides. That meant, so far anyway, in Texas, same-sex spouses did not have to be recognized as a “spouse” for FMLA purposes.
What the New Definition of “Spouse” Will Be
Effective March 27, 2015, a new DOL regulation will change the definition of spouse in a same-sex marriage to one recognized by the “place of celebration”. The revision effectively extends FMLA rights to eligible workers in same-sex marriages for all marriages recognized in the state of celebration of the marriage. For Texas employers then, after March 27, 2015, if an employee was married in New Mexico, for example, even though he or she resides in Texas, the employee will enjoy FMLA rights to care for his or her same-sex spouse because New Mexico recognizes the marriage as legal.
Get Your Managers and Supervisors Up to Speed On Change
HR managers must be made aware of this rule change in managing FMLA leave requests. Direct managers or supervisors also should be made aware of this change so they do not advise an employee he or she is not entitled to FMLA leave for a same-sex spouse (which now should be covered) because they are not aware of this change in the law.
What Documentation of Marriage Can Employer Require?
The DOL regulations provide that, “An employee can satisfy the requirement either by providing documentation such as a marriage license or a court document or by providing a simple statement asserting that the requisite family relationship exists.” The employee gets to choose which type of proof to provide, not the employer.
Changes in FMLA Policy and Forms Will Be Required
Employers need to update FMLA policy and forms and notices to incorporate DOL’s new definition of “spouse”.
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