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The Family Medical Leave Act and Same-Sex Marriages

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Employers with fifty or more employees should be aware of recent changes made to the Family Medical Leave Act (“FMLA”).  The FMLA allows eligible employees to take up to twelve weeks of unpaid leave in a twelve month period in certain situations.  One of the reasons an employee may take FMLA leave is to care for certain family members, including a spouse, with a serious health condition.

Many employers have struggled with the question of “who is a spouse” when considering same-sex marriages and civil unions.  This issue is now settled with changes to the FMLA regulations that went into effect on March 27, 2015.  With the recent changes, the FMLA regulations now require an employer to consider the “place of celebration” of a marriage instead of the “state of residence” of the employee to determine whether a spousal relationship exists.

For example, same-sex marriages cannot currently be performed in Ohio and the issue of whether Ohio must recognize same-sex marriages performed in other states is in litigation.  However, for purposes of the FMLA, the employer must look to the “place of celebration” or place of the marriage to determine who is a spouse under the FMLA.  If an employee who resides and works in Ohio gets married to an individual of the same sex in a state that legally recognizes same-sex marriages, that Ohio employee now has a spouse for purposes of the FMLA.

It is relatively simple to apply the new rule to determine whether an employee has a spouse under the FMLA.  However, the change in the definition of a “spouse” for purposes of the FMLA has many other implications.  For example, an FMLA eligible employee may request leave to:

  • take care of a stepchild (child of their same-sex spouse) with a serious health condition, even if the stepchild does not reside in the same household;
  • take care of a stepparent (the natural parent of the employee’s same-sex spouse ) with a serious health condition; and
  • take military caregiver leave for a same-sex spouse who is a covered service member or veteran with a serious injury or illness.

Determining when an employee is eligible for FMLA can be confusing and complicated.  In the event your organization has questions regarding FMLA eligibility or any other employment-related questions, feel free to contact Todd C. Hicks at (440) 285-2242 or