Family and Medical Leave Act

New Guidance from U.S. DOL on FMLA Leave for Mental Health Conditions

June 6, 2022

In connection with Mental Health Awareness Month, the United States Department of Labor (USDOL) has sought to assist employers in better understanding how to comply with the Family Medical Leave Act (FMLA) as it relates to mental health conditions. Accordingly, on May 25, 2022, the USDOL issued new guidance (Guidance) and frequently asked questions (FAQs) on providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition.

Read More >> New Guidance from U.S. DOL on FMLA Leave for Mental Health Conditions

Changes to New York Paid Family Leave

November 3, 2021

By Kerry W. Langan and Theresa E. Rusnak

PFL Expanded to Include Siblings

On Nov. 1, 2021, Governor Kathy Hochul signed a bill into law amending the definition of family member for purposes of the New York Paid Family Leave Benefits Law (PFL) to include biological or adopted siblings, half-siblings and step-siblings. This amendment takes effect on Jan. 1, 2023. Currently, family members for purposes of PFL include a child, parent, grandparent, grandchild, spouse and domestic partner. 

Read More >> Changes to New York Paid Family Leave

Department of Labor Issues Temporary Regulations on the Families First Coronavirus Response Act

April 3, 2020

By Theresa E. Rusnak

On April 1, 2020, the Department of Labor (DOL) published the first regulations on the Families First Coronavirus Response Act (FFCRA). As a reminder, the FFRCA became effective on April 1 as well, and provides for Emergency Family and Medical Leave (EFMLA) and Emergency Paid Sick Leave (EPSL). Both laws apply to private employers with fewer than 500 employees, as well as some public employers. 

Read More >> Department of Labor Issues Temporary Regulations on the Families First Coronavirus Response Act

U.S. Department of Labor Issues Questions and Answers Regarding the Families First Coronavirus Response Act

March 30, 2020

By Adam P. Mastroleo

On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was enacted.  The statute left many questions regarding its implementation and administration unanswered.  Over the past several days, the U.S. Department of Labor (the “DOL”) has been publishing questions and answers addressing some of these unanswered questions.  Here is a summary of some of the key information provided by the DOL.

Read More >> U.S. Department of Labor Issues Questions and Answers Regarding the Families First Coronavirus Response Act

The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act: A Summary for Employers

March 20, 2020

By Andrew D. Bobrek

As part of the Families First Coronavirus Response Act, which was signed by President Trump on March 18, Congress enacted the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act.  Both of these enactments impose significant new obligations on employers.  Here is a summary of what employers need to know.

Read More >> The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act: A Summary for Employers

Human Resource Professionals Beware -- Second Circuit Finds HR Director May Be Individually Liable Under the FMLA

March 23, 2016

By Robert F. Manfredo
On March 17, 2016, the United States Court of Appeals for the Second Circuit issued a decision in Graziadio v. Culinary Institute of America.  In that decision, the Court held that the facts (when viewed in the light most favorable to the plaintiff) could lead a jury to conclude that the Culinary Institute of America’s Director of Human Resources was individually liable for violating the Family and Medical Leave Act. The plaintiff, Cathy Graziadio, was employed at the Culinary Institute as a Payroll Administrator.  On June 6, 2012, Graziadio’s son was hospitalized due to issues related to Type I diabetes.  Graziadio immediately informed her supervisor that she needed to take leave to care for him.  Graziadio completed the necessary FMLA paperwork and submitted medical documentation supporting her need for leave.  Only a few weeks later, Graziadio’s other son fractured his leg playing basketball and underwent surgery.  Graziadio again notified her supervisor that she needed leave to care for her other son and expected to return to work, at least part time, by the week of July 9. On July 9, Graziadio’s supervisor asked for an update on Graziadio’s return to work and Graziadio responded that she needed a reduced, three-day week schedule until mid-to-late August and could return July 12 if that schedule was approved.  Graziadio asked whether the Culinary Institute required any further documentation from her.  At that point, Graziadio’s supervisor contacted the Director of Human Resources regarding Graziadio’s request.  Despite several calls and e-mails from Graziadio, the Director of Human Resources did not respond until July 17.  Over the next several weeks, Graziadio and the Director of Human Resources corresponded regarding Graziadio’s need for continued leave, alleged deficiencies in her FMLA documentation, and her expected return to work date. On September 11, 2012, the Director of Human Resources sent Graziadio a letter notifying her that she had been terminated for abandoning her position.  After being terminated, Graziadio commenced an action against the Culinary Institute, her supervisor, and the Director of Human Resources alleging interference with her FMLA leave and retaliation for taking FMLA leave.  The District Court granted summary judgment to the Culinary Institute and the individual defendants, but the Second Circuit reversed that decision. Under the FMLA, an individual may be held liable if he or she is considered an “employer,” defined as “any person who acts, directly or indirectly in the interest of an employer to any of the employees of such employer.”  In examining this standard, the Second Circuit applied the economic realities test – which courts apply to determine who may be considered an employer under the Fair Labor Standards Act.  Under this test, the Court must look to whether the individual “possessed the power to control the worker in question.”  The factors include whether the individual:  (1) had the power to hire and fire employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.  In the context of the FMLA, courts look to whether the individual “controlled in whole or in part plaintiff’s rights under the FMLA.” In the Graziadio case, the Second Circuit held that the Director of Human Resources “appears to have played an important role in the decision to fire Graziadio” and “under the totality of the circumstances, [the Director of Human Resources] exercised sufficient control over Graziadio’s employment to be subject to liability under the FMLA."  Accordingly, unless the parties reach a settlement, the case will proceed to trial with both the Culinary Institute and its Director of Human Resources as defendants. This case stands as a stark reminder to human resource professionals involved in making decisions related to employee FMLA requests to proceed with caution and to strictly comply with the requirements of the FMLA when processing requests for leave.  If there is any doubt regarding the appropriate course of action, human resource professionals should consult with counsel.

Federal Appeals Court Provides Employers With a Harsh Reminder to Carefully Draft Their FMLA Policies

March 31, 2015

Employers are likely well aware of the conditions that must be satisfied before an employee can be deemed eligible for leave pursuant to the Family and Medical Leave Act (“FMLA”):
  • the employee has worked for the employer for at least 12 months;
  • the employee has worked 1,250 hours in the 12 months preceding the leave request; and
  • the employer has 50 or more employees at, or within 75 miles of, the employee’s workplace -- the so-called “50/75” requirement
If one of these conditions is not satisfied, an employer cannot later be held liable for any FMLA-related claims brought by an employee, right?  Not so fast!  Although determining whether these conditions are met is typically the simplest step in the FMLA certification process, the United States Court of Appeals for the Sixth Circuit recently reminded employers of the headaches they may face if they are not careful in notifying their employees of these conditions. On January 26, 2015, the Sixth Circuit decided Tilley v. Kalamazoo County Road Commission.  Tilley was employed by the Road Commission, which did not meet the 50/75 requirement.  The Road Commission’s personnel manual contained the following statement regarding an employee’s eligibility to apply for FMLA benefits:  "Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months." On August 1, 2011, Tilley began experiencing symptoms that made him fear that he was suffering a heart attack.  He was taken to the hospital, admitted for observation, and discharged the next day.  After his discharge, Tilley’s wife informed the Road Commission that Tilley would not be able to return to work until at least August 5. On August 9, a Road Commission representative sent Tilley FMLA paperwork that informed him that he was “eligible for FMLA leave.”  At no time was Tilley informed that the Road Commission did not meet the 50/75 requirement, or that such a requirement even existed.  On August 12, the Road Commission terminated Tilley’s employment, claiming that the reason for his termination was his failure to timely submit certain work assignments. Tilley filed suit, claiming that the Road Commission interfered with his right to FMLA leave and retaliated against him for taking such leave.  The Sixth Circuit agreed with the Road Commission that Tilley was not technically an “eligible employee” under FMLA, but concluded that Tilley’s case could continue because there was a dispute as to whether the Road Commission was “equitably estopped” from denying that Tilley was an eligible employee. The Court explained that “in certain circumstances equitable estoppel applies to employer statements regarding an employee’s FMLA eligibility, preventing the employer from raising non-eligibility as a defense.”  In order to prevail on such an “equitable estoppel” argument, an employee must show a definite misrepresentation by the employer, a reasonable reliance on the misrepresentation, and a resulting detriment to the employee who reasonably relied on the misrepresentation.  The Court found that Tilley presented sufficient evidence on all three elements to allow his case to continue. As to the first element, the Court held that the Road Commission’s personnel manual contained a “clear misrepresentation” as to Tilley’s eligibility to apply for FMLA benefits.  Specifically, the manual contained an “unambiguous and unqualified statement” that Tilley was covered by FMLA and was eligible to apply for FMLA benefits if he worked 1,250 hours in the previous 12 months, but it failed to note that the 50/75 requirement must also be satisfied.  Next, the Court found that there was sufficient evidence that Tilley relied upon the eligibility statement in the manual, which was sufficient to satisfy the second element.  Finally, as to the third element, the Court held that Tilley suffered a detriment as a result of his reliance on the eligibility statement in the manual since he was fired in part because he missed a deadline that he claims he would not have missed but for his reliance on the manual.  Therefore, because Tilley raised questions of fact regarding all elements of an equitable estoppel claim, the Court permitted Tilley’s FMLA claims to move forward. The takeaway from this decision is straightforward:  employers should immediately review their personnel manuals and/or FMLA policies to ensure that they are well-drafted and that all eligibility conditions for FMLA leave are adequately explained.  A poorly drafted or incomplete FMLA policy could result in an employer being in a situation similar to the Road Commission -- potentially being liable for an FMLA claim even when the employee making the claim is not even technically eligible for FMLA leave!

The U.S. Department of Labor Announces a Revised Definition of "Spouse" Under the FMLA

February 22, 2015

The U.S. Department of Labor ("DOL") today announced a change to the definition of spouse under the Family and Medical Leave Act ("FMLA").  Under this new rule, which will be published later this week (on February 25, 2015), an employee in a legal same-sex marriage will be entitled to use FMLA leave to care for a same-sex spouse regardless of where the employee lives.  The DOL initially proposed the rule on June 20, 2014. This change was triggered by the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor.  In Windsor, the Court ruled that the federal Defense of Marriage Act ("DOMA") was unconstitutional.  Prior to Windsor, and consistent with DOMA, the FMLA defined spouse as a marriage between a man and a woman.  This meant that same-sex married couples could not use FMLA leave to care for each other.  Immediately following Windsor, the DOL announced that an employee could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage (i.e., a “state of residence” approach).  This interpretation meant that a category of same-sex spouses were still unable to use the protections of the FMLA:  those who married in a state recognizing same-sex marriage, but who lived in a state that did not. This latest rule change, which takes effect on March 27, 2015, shifts to a “place of celebration" approach and ensures that same-sex spouses have the same rights as all spouses to exercise FMLA rights.  In other words, as long as the employee is legally married, and regardless of the legal status of same-sex marriage in the state the employee now resides, the employee can 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 a same-sex spouse;
  • to care for a stepparent who is the same-sex spouse of the employee’s parent;
  • due to a qualifying exigency related to the same-sex spouse’s covered military service; or
  • to care for a covered servicemember who is a same-sex spouse.

Understanding an Employer's Obligations When Domestic Violence Affects the Workplace

November 10, 2014

By Mark A. Moldenhauer

Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner.  Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis.  When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation.  While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:  Do any job protections exist for domestic violence victims? Answer:  Yes.  In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis.  While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence.  This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons.  It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments.  Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business.  Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:  Is an employer required to provide victims of domestic violence time off from work? Answer:  The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection.  In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence.  The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:  Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer:  The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions.  Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee.  Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees.  An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:  What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer:  New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor.  At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds.  This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission.  If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime.  In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation.  Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action.  Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused.  If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection).  If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record.  In either situation, merely ignoring the problem is never a good strategy.

Be Prepared: Understanding the Impact That the Ebola Outbreak May Have on Employers

October 27, 2014

By Caroline M. Westover

Two months ago, many Americans were unfamiliar with the term “Ebola."  It’s amazing how quickly things can change.  Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak.  Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans.  If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus.  Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are:  fever, fatigue, muscle pain, headache, and sore throat.  As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to:  nausea, vomiting, diarrhea, a rash, and impaired organ function(s).  The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q:  What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue.  If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:

  • Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
  • Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
  • Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
  • Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
  • National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.

Q:  May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA.  Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard?  The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so.  As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present:  (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q:  To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored.  In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus.  Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q:  May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances.  In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others.  Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk.  The governing standard here is one of reasonableness.  For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms.  Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q:  What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury.  Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm.  According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States.  Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern.  Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q:  What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed.  In other words, don’t panic.  Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:

  • Educate the workforce.  Lack of information or misinformation spawns unnecessary hysteria.  The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
  • Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
  • Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
  • Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
  • Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
  • Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.

It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States.  However, what is abundantly clear is that this situation is constantly changing.  What may seem reasonable today may need to be modified tomorrow.  As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.

DOL Proposes to Expand the Availability of FMLA Leave to All Same-Sex Spouses

June 23, 2014

By Kerry W. Langan
On Friday, June 20, 2014, the Wage and Hour Division for the U.S. Department of Labor (“DOL”) announced a proposed rule that would extend the spousal leave protections afforded by the Family and Medical Leave Act (“FMLA”) to include all eligible employees in legal same-sex marriages – regardless of where the employees live. The FMLA provides eligible employees with the right to take unpaid leave for a variety of qualifying reasons and to various qualifying family members.  When focusing purely on FMLA leave for spouses, eligible employees may take FMLA leave to care for their spouse under the following circumstances:  (1) when time off is needed to care for a spouse with a serious health condition; (2) when time off is needed to care for a spouse who is a covered servicemember with a serious injury or illness; and/or (3) when time off is needed for a qualifying exigency related to the covered military service of a spouse. The FMLA regulations currently define the term “spouse” to mean a “husband or wife, as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”  This definition of spouse has historically excluded same-sex marriages because of certain definitions contained in Section 3 of the Defense of Marriage Act (“DOMA”), a federal law that permits states to refuse to recognize same-sex marriages granted under the laws of other states.  However, in June 2013, the United States Supreme Court declared Section 3 of DOMA unconstitutional in its U.S. v. Windsor decision.  What result did the Court’s Windsor decision have on the FMLA?  In sum, this decision enabled eligible employees in legal same-sex marriages residing in states that recognize their marriage to avail themselves of the various leave rights and protections to care for spouses offered under the FMLA. Despite the practical developments stemming from Windsor, many same-sex couples remain unable to take FMLA spousal leave.  For example, employees who are legally married in a state which recognizes same-sex marriages, but subsequently move to a state which does not, may not be entitled to seek FMLA spousal benefits because FMLA spousal benefits are governed by the state of the employee’s residence.  With its newly proposed rule, the DOL is attempting to rectify this inconsistency by revising the definition of spouse so that the FMLA regulations will look to the law of the state (or country) where the marriage was entered into, as opposed to the law of the state where the employee resides.  The DOL believes that this change from a “place of residence” rule to a “place of celebration” rule will allow all legally married couples, whether opposite-sex or same-sex, to have consistent FMLA rights, regardless of the state in which they reside. The DOL’s proposed rule would also permit eligible employees to take FMLA leave to care for their stepchild (child of the employee’s same-sex spouse) or stepparent (employee’s parent’s same-sex spouse) without establishing an in loco parentis relationship. Like all proposed administrative changes, this DOL rule is subject to a notice and comment period before it can be implemented.  We will continue to follow this FMLA issue and provide additional updates if and when a final rule is issued.