How recent FMLA changes will affect restaurants

John J. Balitis and Kevin M. Green

On February 25, 2015, the U.S. Department of Labor (DOL) adopted new regulations that define the term “spouse” for purposes of the Family and Medical Leave Act of 1993.  Under the regulations, which took effect on March 27, the term “spouse” includes all individuals in same-sex and opposite-sex marriages, regardless of whether the states in which those individuals reside and work recognize same-sex marriage.

On June 26, 2013, the U.S. Supreme Court issued its opinion in United States v. Windsor, finding unconstitutional a provision of the Defense of Marriage Act that defined “spouse” for purposes of federal law to include only a “person of the opposite sex who is a husband or a wife.” As a result of Windsor, individuals in same-sex marriages gained access to previously unavailable federal benefits and protections, including FMLA benefits for eligible employees. 

FMLA is the principal federal law that provides job-protected leave to certain employees who must be absent from work for the purpose of addressing their own and certain family members’ health conditions and specified purposes related to military service. Among those family members whose medical conditions or military service might entitle an employee to job-protected leave is the employee’s spouse, who the statute defines as “a husband or wife, as the case may be.” 

Following Windsor, the DOL issued guidance on the definition of “spouse” under the FMLA, which indicated that eligible employees in a same-sex marriage who reside in a state that recognizes their marriage may take FMLA leave to attend to spousal medical and other needs. 

With the DOL’s new regulations about to go into effect, however, an updated rule will define who is a “spouse” for purposes of FMLA. Under the new regulations, determination of who counts as a “spouse” for FMLA purposes will be based upon the law of the state in which a marriage is celebrated, rather than the state in which the individuals seeking benefits reside. As a result, beginning on March 27, 2015, eligible employees who have been married in states that recognize same-sex marriages will be entitled to utilize FMLA leave for spousal purposes whether or not the states in which those employees reside or work also recognize same-sex marriages.

Do’s and don’ts under the DOL’s new regulations

Although the DOL’s new definition of “spouse” will expand the number of employees who may utilize FMLA leave to address a spouse’s health or military duty issues, it is unlikely to cause a sea change in FMLA leave. Spousal FMLA leave remains available only to individuals who are lawfully married; it does not apply to individuals in domestic partnerships or civil unions. As a practical matter, however, many employers already extend FMLA rights to individuals in same-sex marriages or domestic partnerships without regard to the legality of same-sex marriage.

Nonetheless, as FMLA entitlements change, employers must take care to ensure that the FMLA is administered in accordance with the DOL’s new definition of “spouse.” One way to ensure that both employees and management understand the implications of this new definition is to incorporate into an existing FMLA policy a definition for “spouse,” which explains that FMLA leave for spousal purposes is available to eligible employees who have been lawfully married in any jurisdiction. Additionally, employers should clearly explain the manner in which employees may request leave to care for a spouse and the types of documentation that will be required for a FMLA leave to be approved. 

Notably, FMLA permits employers to obtain reasonable documentation of a spousal relationship. In obtaining such documentation, employers should take care to ensure that FMLA programs are administered in an equitable, nondiscriminatory manner. Especially in those jurisdictions that have enacted protections for employees based upon sexual orientation, employers that request documentation of a spousal relationship should do so with all employees, regardless of whether the spouse at issue is same-sex or opposite-sex.

John Balitis chairs the employment and labor relations practice group at Fennemore Craig. Kevin Green is an attorney in the firm’s employment and labor relations practice group.