April 2015

Implementation of revised FML definition of spouse delayed

The U.S. Department of Labor (DOL) final regulations that define “spouse” according to the state where the marriage took place became effective on the national level on March 27, 2015. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent Family and Medical Leave Act (FMLA) rights regardless of whether the state in which they currently reside recognizes the marriage. 
 
On March 26, the federal court granted the Texas Attorney General’s office request for preliminary injunction against enforcement of the regulations in Texas. This means that for now, the new definition does not apply to school district employees.
 
The new regulations follow the 2013 U.S. Supreme Court ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act (DOMA) provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for purposes of federal law. In 2013, DOL announced an interpretation of the definition of spouse to include same-sex marriages for FML purposes, but only if the employee resided in a state that recognized same-sex marriage. Because of the injunction, this continues to be the standard for Texas school districts. As a result, only the few districts with employees that reside in New Mexico and Oklahoma and commute to Texas are currently required to provide FML for same-sex spouses.
 
The new FML regulations, effective March 27, 2015, for states other than Texas, allow eligible employees to:
  • Take FML to care for their lawfully married same-sex spouse with a serious health condition
  • Take qualifying exigency leave due to their same-sex spouse’s covered military service
  • Take military caregiver leave for their same-sex spouse
  • Take FML to care for the child of their same-sex spouse (i.e., stepchild) regardless of whether the employee meets the in loco parentis requirement of providing day-to-day care or financial support
  • Take FML to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee
Information on same-sex marriage and other employment issues is available in the TASB School Law eSource paper, “Same Sex Marriage and School District Employees.” Additional information including the text of the final FMLA rules is available on the DOL Website. Changes to Policy DECA (LEGAL) will be made in Update 103, which is expected to be sent to districts in August and September.