In yet another legal ripple from last summer’s DOMA-slaying Windsor decision, the Obama administration announced today a proposed extension of the Family Medical Leave Act, a 1993 law that allows employees to take unpaid time off to care for an ailing spouse or family member without fear of being fired, to same-sex couples who were married in states where gay marriage is legal. The new definition of “spouse” in the law will be open to a period of public comment, after which it would most likely become policy. In a statement issued by the White House, the administration explained that the definition would change such that “an employee in a legal same-sex marriage will 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.
As the New York Times notes, the move is a crucial one because “without the regulatory changes, gay couples could be blocked from receiving federal benefits in states that do not recognize their marriages.” Shifts in policy at the Department of Labor mirror those in other areas of the federal government overseen by Obama in recent months, including gay marriage-affirming changes in immigration and at the Department of Defense, as well as the IRS.
