The Department of Labor has issued final rule-making that broadens the reach of the Family Medical Leave Act (FMLA) to legally married, same-sex couples regardless of the state in which they live. These new regulations will take effect on March 27, 2015.

Currently, FMLA covers same-sex couples only if the employee seeking to avail himself/herself of FMLA benefits works in a state that recognizes same-sex marriage as lawful in that state. A same-sex couple that was married in a state that recognized same-sex marriages does not have FMLA rights if they work in a state that does not recognizes same-sex marriages.

The new regulations adopt a “state of celebration” definition of same-sex marriage for FMLA purposes. Under that approach, an employee in a same-sex marriage who was married in a state that recognizes such marriages is entitled to FMLA benefits to care for his or her spouse regardless of whether the state in which he or she now works recognizes such marriages.

The new regulations are not without controversy. For example, can employers of a same-sex married couple require proof that the marriage was solemnized in a state that recognizes same-sex marriage, if FMLA rights are requested, or would doing so be discrimination based on marital status? Further, traditionally, the full faith and credit clause of the U.S. Constitution does not require one state to recognize the marriage of another state if the marriage would not be lawful under the laws of the first state. These regulations might be challenged on constitutional grounds either by state employers in states that do not recognize same sex marriage or religious institutions, both of which are subject to the FMLA.

For questions, comments or additional information, please contact Robert Small, Partner in our Employment Practice Group, at rsmall@regerlaw.com or via phone at 215.495.6541.