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DOL Clarifies FMLA Rightsfor Same-Sex Spouses

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, jobprotected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

On Aug. 9, 2013, the Department of Labor (DOL) issued Fact Sheet #28F to clarify the scope of an employer’s obligation to make FMLA available to same-sex spouses. This fact sheet confirms that, for purposes of the FMLA, the term “spouse” includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides.

As a result, legally married same-sex spouses living in a state that recognizes marriage will be entitled to FMLA leave on the same terms as opposite-sex spouses. However, unless further guidance is issued extending FMLA rights to all legally married same-sex spouses (regardless of residence), employers will not be required to make FMLA leave available to a same-sex spouse who resides in a state that does not recognize same-sex marriage.


Until recently, the federal Defense of Marriage Act (DOMA) prevented same-sex married couples from being treated as spouses under federal law by defining the term “marriage” as a legal union between one man and one woman as husband and wife. As a result, same-sex couples were not eligible for certain federal benefits available to spouses, such as FMLA leave.

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of DOMA by ruling that this portion of the law violates the U.S. Constitution’s guarantee of equal protection. As a result of the Supreme Court’s ruling, same-sex couples that are legally married under state law are now entitled to the same benefits and protections under federal law as opposite-sex married couples.

In states that allow same-sex marriages, employers are now required to treat employees’ same-sex and opposite-sex spouses equally for purposes of federal employee benefit laws. However, the Supreme Court’s decision applies only to same-sex marriages that are valid under state law. It does not affect same-sex couples in civil unions or domestic partnerships, or same-sex couples living in states that do not recognize same-sex marriage. These couples will generally remain ineligible for the federal benefits provided to spouses, such as joint tax filing and family leave.


Eligible employees are entitled to take up to 12 workweeks of FMLA leave in a 12-month period for any of the reasons listed below.

The birth of a child and to bond with the newborn child within one year of birth

An employee’s entitlement to FMLA leave for birth and bonding expires 12 months after the date of birth. Both mothers and fathers have the same right to take FMLA leave for the birth of a child. Birth and bonding leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave (e.g., allowing a parent to return to work on a part-time schedule for 10 weeks).

The placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement

FMLA leave may be taken before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, the employee may be entitled to FMLA leave to attend counseling sessions, appear in court, consult with his or her attorney or the birth parent’s representative, submit to a physical examination or travel to another country to complete an adoption before the actual date of placement.

FMLA leave to bond with a child after placement must be taken as a continuous block of leave, unless the employer agrees to allow intermittent leave. An employee’s entitlement to FMLA leave for the placement of a child for adoption or foster care expires 12 months after the placement.

A serious health condition that makes the employee unable to perform the functions of his or her job

An employee is “unable to perform the functions of the position” where the health care provider finds that the

An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

To care for the employee’s spouse, son, daughter or parent who has a serious health condition

An employee must be needed to provide care for his or her spouse, son, daughter or parent because of the family member’s serious health condition in order for the employee to take FMLA leave. An employee may be needed toprovide care to the family member, for example:

Spouse: Spouse means 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 and same-sex marriage.

Parent: Parent means a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents “in law.”

Son or daughter: Son or daughter means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of selfcare because of a mental or physical disability” at the time that FMLA leave is to commence.

In Loco Parentis: The FMLA regulations define in loco parentis as including those with day-to-dayresponsibilities to care for or financially support a child. Employees who have no biological or legal relationship with a child may, nonetheless, stand in loco parentis to the child and be entitled to FMLA leave. Similarly, an employee may take leave to care for someone who, although having no legal or biological relationship to the employee when the employee was a child, stood in loco parentis to the employee when the employee was a child, even if they have no legal or biological relationship.

Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a military member on covered active duty

Qualifying exigencies are situations arising from the military deployment of an employee’s spouse, son, daughter or parent to a foreign country. Qualifying exigencies for which an employee may take FMLA leave include:

An employee may take qualifying exigency leave for the deployment of a son or daughter of any age.


An eligible employee may also take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member (military caregiver leave).

Eligible family members of both current service members and certain veterans are entitled to military caregiver leave.


It is unlawful for any employer to interfere with, restrain or deny the exercise of any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA.

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If an employee believes that his or her rights under the FMLA have been violated, the employee may file a complaint with the Wage and Hour Division or file a private lawsuit against the employer in court.


For more information on the FMLA, contact Schumacher & Walker Insurance Associates or visit the DOL’s Wage and Hour Division website.

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