DOL proposes FMLA expansion for same-sex marriage employees

A new proposal from the Department of Labor plans to extend the reach of the Family Medical Leave Act to all eligible employees in same-sex marriages, as the federal government continues to offer guidance after the U.S. Supreme Court’s landmark ruling in United States v. Windsor.

Thomas E. Perez, the U.S. Secretary of Labor, states in a new proposed rule that the Labor Department plans to include all same-sex families under the FMLA, a provision that allows employees to take unpaid leave for family or medical reasons without worry of losing their job.

“Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families,” says Perez.

Also See: New post-Windsor guidance on same-sex marriage

The DOL proposal follows mandates from the Internal Revenue Service, which called for qualified retirement plans to recognize these employees as of June 26, 2013. In the Windsor ruling, the nation’s highest court struck down the Defense of Marriage Act, a directive that said federal law defined marriage and spouse only between individuals in opposite-sex marriages.

Meanwhile, for those on the front lines of the employer benefits space, the DOL proposal is not a surprise, as it was expected to come down the pike. Todd A. Solomon, a partner in law firm McDermott Will & Emery, notes that the FMLA proposal is consistent with other similar federal rules offered by the IRS and the DOL. But Solomon cautions that those employers who are not prepared for this extension need to act fast.

“The [employers] that really need to take a close look are the ones that haven’t previously covered same sex spouses,” says Solomon. “It used to be that for benefit plan sponsors, it was in large part a matter of choice but now, with a few limited exceptions, much of this is mandated. Retirement plans are mandated, FMLA is mandated.”

Also See: IRS issues rules for recognizing same-sex spouses under retirement plans

The DOL will field comments regarding the FMLA proposal within 45 days after it is published in the Federal Register. However, Solomon explains that is not likely that the proposal will
change extensively following the review period.

“It’s not even that the tide is turning anymore,” he says. “It sort of has turned, at least from a benefits standpoint. It’s not even really a political issue or religious issue any more, this is the way it is in almost every area under federal benefits and tax.”