The U.S. Department of Labor announced on June 20, 2014, a proposed rule extending the protections of the Family and Medical Leave Act (“FMLA”) to all eligible employees in legal same-sex marriages regardless of where they live. The proposed rule change would help ensure all families maintain the flexibility to deal with serious medical and family situations without fear of family members losing their jobs. This proposed change is especially important in Wisconsin where a recent federal decision struck down Wisconsin’s constitutional amendment prohibiting same sex couples from marrying.

We have previously discussed the legal protections afforded to qualified employees under the FMLA. It is important to note again, however, the federal FMLA entitles qualified employees to take time off from work to care for themselves, a new baby, or sick family member. The proposed rule change would alter the FMLA regulatory definition of “spouse” so an eligible employee in a legal same-sex marriage would be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages. In Wisconsin, that means anyone who secured a marriage license after the same-sex marriage amendment was ruled unconstitutional would be covered under the FMLA if the proposed rule is passed. It also means same-sex couples who reside in Wisconsin but married in other states would be covered under the FMLA.

The information provided above presents general information on employee rights and is not intended to provide legal advice. If you believe an employer has violated your rights relating to FMLA or other rights, contact one of the employment attorneys at Hawks Quindel, S.C.

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Colin Good