Obergefell Ruling Reaffirms That Employees In Same-Sex Marriages Have FMLA Rights

Earlier this year, the U.S. Department of Labor (DOL) issued a final rule defining “spouse” under the Family and Medical Leave Act (FMLA) so that an eligible employee in a same-sex marriage is able to take FMLA leave to care for his or her spouse or family member, regardless of whether the state in which they live recognizes same-sex marriages. That rule became effective on March 26, 2015. The DOL has not issued any additional guidance yet in light of Obergefell v. Hodges, but it seems clear that Obergefell means that all employers are required to permit eligible employees in same-sex marriages to take FMLA leave to care for their spouses since such marriages are now lawful in every state. Notably, the DOL’s rule does not recognize civil-union partners as “spouses” under the FMLA. Finally, the DOL held in 2010 that the FMLA requires employers to provide FMLA leave to eligible employees who will be the co-parents of their partners’ biological or adoptive children, including leave to bond with the children after birth or adoption, or to care for children with serious health conditions.