Smart Benefits: FMLA to Revise Definition of Spouse
Amy Gallagher, GoLocalProv Business/Health Expert
Smart Benefits: FMLA to Revise Definition of Spouse
Last year, the U.S. Supreme Court ruled that a part of the Defense of Marriage Act that limits the definitions of "marriage" and "spouse" to opposite sex marriages and spouses was unconstitutional. While the Department of Labor, IRS, and Department of Health and Human Services have since issued notices providing that – for purposes of federal taxes and employee benefits – a person legally married to a same-sex person in any state or country is considered married even if they move somewhere that doesn’t recognize same-sex marriages, the Family and Medical Leave Act (FMLA) didn’t take a similar approach. Under FMLA, a person is considered married -- or unmarried -- based on the law of the state in which he or she lives when FMLA begins. But that’s about to change.
Proposed Rule Change
A Proposed Rule would modify the FMLA definition of spouse to match the definition being used for other purposes -- that is, if an employee who is legally married to a same-sex individual requests FMLA to care for the same-sex spouse, or the same-sex spouse's child, FMLA would be available even if the employee lives in a state that doesn’t recognize same-sex marriage. However, since the federal government doesn’t consider civil unions or legally recognized domestic partnerships as marriages, this change would not affect employees in those arrangements.
What Do Employers Need to Do?
Employers should continue to use the employee's place of residence to determine whether FMLA should be offered until the proposed change becomes final. Comments on the proposed change may be made until August 22, 2014, so the earliest this change would take effect is this fall. And employers are free to offer leave even though it is not legally required.
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A FAQ on this topic can be found http://www.dol.gov/whd/fmla/nprm-spouse/faq.htm.
Amy Gallagher has over 21 years of healthcare industry experience guiding employers and employees. As Vice President at Cornerstone Group, she advises large employers on all aspects of healthcare reform, benefit solutions, cost-containment strategies and results-driven wellness programs. Amy speaks regularly on a variety of healthcare-related topics, and is often quoted by national publications on the subject matter. Locally, Amy is a member of SHRM-RI, the Rhode Island Business Group on Health, and the Rhode Island Business Healthcare Advisory Council.
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