What HR should know about same-sex marriage and the FMLA #SHRM14

Thumbnail image for fmla.jpegFolks, I get the feeling you may be inundated with extra blog posts over the next few days.

That is, I’m punching this post out from the airport, as I await my flight to Orlando, where I’ll be attending the Gathering of the Juggalos 2014 SHRM Annual Conference and Expo.

Two speaking gigs for me and lot of other conference time to listen, learn, and blog.

My first session is Tuesday, where I’ll present “Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA.”

So, the timing of last week’s announcement from the U.S. Department of Labor couldn’t have come at a better time.

(Thanks for holding off on the announcement. Let me know what you think of that bottle of 12-year I sent you).

Same-sex couple will enjoy the same FMLA rights.

The Family and Medical Leave Act permits eligible employees to take leave to care for a family member with a serious health condition. The FMLA defines family member as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.” So, if your employee resides in a state where same-sex marriage is legal, then that employee can take leave under the FMLA to care for a spouse with a serious health condition.

The Department proposes to define spouse as follows:

“Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

Here’s the long and short of it, under the proposed rule, all legally married couples (opposite-sex, same-sex, common-law) would have the same FMLA rights, regardless of residence.

Be heard on this proposed rule.

If you have comments on the proposed rule, you can leave them below. But, until the Department recognizes this blog as an official forum for public comment — mailing second bottle of scotch shortly — you can leave comments for the rule officially the the Department here.

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