The Family and Medical Leave Act (“FMLA”) allows eligible employees to take unpaid leave to care for themselves or an ill spouse or child. In response to the Supreme Court’s ruling striking down the Defense of Marriage of Act in U.S. v. Windsor, the U.S. Department of Labor has revised its FMLA regulations to make it clear that “spouse” encompasses the parties to a lawful same sex marriage. If the marriage was lawful at the place where it was entered into, then the spouses may take FMLA leave to care for one another.
The determination of whether the same sex marriage is a lawful marriage will be based on where the ceremony took place. This means that, under the new regulations, same sex spouses who were married in a state in which same sex marriage is legal will be allowed to take FMLA leave to care for one another even if they now live in a state in which same sex marriage is not legal.
This change in the regulations will take effect March 27, 2015.