Wagner Header

The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established 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.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


Illinois Office

Tel: (847) 250-1365

Fax: (847) 250-1367

414 West Deerpath Road
Lake Forest, IL  60045  







June 26, 2014


 State and Federal Law Alert




DOL Proposes Rule Extending FMLA Rights of Same-Sex Couples





The 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 marriage.


DOL's 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. 

Under 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. 

Next 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.


The 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





This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.


Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.


This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.