The Wagner Law Group Description
Wagner Law Group, A Professional Corporation, is a nationally
recognized ERISA & employee benefits, estate planning,
employment, labor & human resources practice.
in 1996, The Wagner Law Group has 23 attorneys engaged
exclusively in employee benefits, estate planning and
employment law. Seven of our attorneys are AV rated by
Martindale-Hubbell as having very high to preeminent legal abilities
and ethical standards. The firm is among the largest ERISA boutiques
in the country. Our practice is national in scope, with clients in
more than 40 states and several foreign countries.
Wagner Law Group
Fax: (561) 293-3591
7108 Fairway Drive
Palm Beach Gardens, FL 33418
Francisco, CA 94104
West Deerpath Road
Lake Forest, IL 60045
June 26, 2014
State and Federal Law
Proposes Rule Extending FMLA Rights of Same-Sex Couples
United States Department of Labor has issued proposed regulations to
implement the Supreme Court's United
States v. Windsor decision with regard to the Family and
Medical Leave Act ("FMLA"). The proposed rules would enable
an eligible employee to take FMLA leave to care for a same-sex
spouse, regardless of whether that employee lives in a state that
recognizes same-sex marriages. Specifically, DOL proposes to adopt a
"state of celebration" rule whereby spousal status, for
purposes of FMLA rights, would be determined based on the state where
the employee was married, instead of the state in which the employee
resides (as is provided under current FMLA regulations).
Background. FMLA, among other things, enables eligible employees to
take leave from work to care for seriously ill family members. Before
the Supreme Court's decision in United
States v. Windsor last year, which struck down as
unconstitutional certain provisions of the Defense of Marriage Act
("DOMA"), an employee could not take FMLA leave to care for
a seriously ill same-sex spouse because DOMA did not permit federal
recognition of such relationships. Immediately following the Windsor decision, however,
employees became eligible to take FMLA leave to care for same-sex
spouses, but only if they resided in a state that recognizes same-sex
Proposed Regulations. Some of the highlights of
the DOL's proposed rule include:
- Moving from a "state of
residence" rule to a "state of celebration" rule
that is based on where the marriage occurred, and
- Defining "spouse" to
expressly recognize same-sex and common law marriages, including
same-sex marriages entered into abroad.
the proposed rule, eligible employees, regardless of where they live,
would be allowed to:
- Take FMLA leave to care for a
seriously ill same-sex spouse,
- Take military caregiver leave for
their same-sex spouse, and
- Take qualified exigency leave due
to their same-sex spouse's covered military service.
Steps for Employers. Once the proposed rule
becomes final, employers are advised to engage qualified benefits
professionals to review and amend their FMLA policies and procedures
along with all FMLA-related documents (i.e., forms and notices).
Employers should also be aware that some states' laws already afford
certain leave protections to employees who are in same-sex marriages.
DOL's Notice of Proposed Rulemaking can be accessed at: http://www.fmlainsights.com/wp-content/uploads/sites/311/2014/06/DOL-NPRM-re-U.S.-v.-Windsor.pdf. The
corresponding Fact Sheet may be accessed at: http://www.dol.gov/whd/fmla/nprm-spouse/factsheet.htm, and
FAQs are available at: http://www.dol.gov/whd/fmla/nprm-spouse/faq.htm.
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