Work it Out Blog

Under New Rules Employers Must Provide FMLA Benefits to Same-Sex Spouses

Mar 10, 2015

The legal landscape surrounding same-sex marriage is constantly changing.  In February, the U.S. Department of Labor clarified one area of law, by issuing a Final Rule under which the Family and Medical Leave Act (FMLA) will be applied uniformly to same-sex spouses across the United States, regardless of that state’s stance on same-sex marriage.

Under the FMLA, eligible employees of covered employers are entitled to 12-26 weeks of unpaid, job-protected leave to care for a spouse or certain family members suffering from serious health conditions, after the birth or adoption of a child, or to take military caregiver leave.  The new rule changes the definition of the word “spouse” to apply FMLA protections to same-sex partners who are legally married, regardless of the legal status of same-sex marriage within their state of residence or occupation.

As an example, Ohio has not legalized same-sex marriage, so a same-sex couple could not get married within the state.  However, they could travel to California, a state that does allow same-sex marriage, to get married. Upon returning to Ohio, their employers would be required to provide FMLA benefits to the couple, even though they are living and working in a state that has not legalized same-sex marriage.

Under the new rule, FMLA eligible employees will now be able to take FMLA leave:

  • To care for a same-sex spouse with a serious health condition;
  • To care for a stepchild who is the child of the same-sex spouse;
  • To care for a parent or same-sex stepparent of the employee; 
  • To care for a covered military service member who is a same-sex spouse; or
  • Due to a qualifying need related to the same-sex spouse’s military service.

The new rule will be effective on March 27, 2015.  To prepare for this change, employers should review their personnel policies to ensure they conform to the FMLA requirements, and ensure that their HR personnel are properly trained on the new rule. Please contact your employment law attorney or e-mail Michelle Reese at to update your policies and ensure you are in compliance.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.