
The changes to the rules are the
result of last year’s U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of
Marriage Act (“DOMA”) which defined “marriage” for purposes of federal law as
being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined
“marriage” for FMLA purposes as male-female. With respect to opposite-sex
spouses, the DOL determined whether a couple was validly married based on their
state of residence. That is because
Section 2 of DOMA, which was not addressed in the Windsor decision, says that a state does not have to recognize a
same-sex marriage, even if it was valid in the state where it was entered.
Under the new rule, “place of
residence” will be replaced with “place of celebration” to determine the
validity of a marriage for FMLA purposes. In other words, if a same-sex couple was validly married in any state,
they are spouses for FMLA purposes regardless of where they live. If same-sex couples are married outside of
the United States, they will be considered spouses for FMLA purposes as long as
the marriage: 1) was valid where
entered, and 2) would be considered valid in at least one state.
The Supreme Court announced in
January of this year that it has decided to review the right of states to ban
same-sex marriage. As a result, the
changes to the rule may prove to be unnecessary if the Supreme Court overrules
Section 2 of DOMA and rules that a valid same-sex marriage must be recognized
by other states.
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