There have been a variety of changes to the Family and Medical Leave Act since it was passed in the 1990s. Choose two articles from the the ones listed below and write a brief reflection paper about the changes. Start by describing FMLA. Who does it cover and what does it provide? Do not quote definitions or summaries; put the main ideas/legal requirements into your own words. Then address the following: 1. What are your general thoughts about the changes? Were the changes needed in your opinion? Why/why not?

2. Do you think it was Congress's original intent to cover these cases/issues? Why/why not?

3. How will the changes affect the workplace in general and yours specifically?

Article 1 - Department of Labor (DOL) Proposes New Meaning for "Spouse" for FMLA Purposes

Monday, July 7, 2014

On June 20, theDepartment of Labor("DOL") proposed regulations to amend theFamily and Medical Leave Act's("FMLA") definition of"spouse."Current FMLA regulations define a spouse as "a husband or wife defined or recognized under State law for purposes of marriagein the state where the employee resides, including common law marriage in States where it is recognized." (emphasis added). The DOL is proposing to move from a"state of residence"rule to a rule based on the"place of celebration"(i.e., where the marriage was entered into). The proposed definition specifically includessame-sex marriagesand reads as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into, or in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

If the proposed rule is made final, it means that an eligible employee in a legal same-sex marriage will be permitted to take FMLA leave for his or her spouse or family member, regardless whether the state that the employee resides in recognizes same-sex marriage.

The DOL's proposed change was not a surprise, considering the June 2013 decision inUnited States v. Windsor, in which the United States Supreme Court struck down section 3 of the Defense of Marriage Act, which limited the definition of marriage to opposite-sex unions and "spouse" to individuals of the opposite sex who are married. TheWindsordecision did not invalidate section 2 of the Defense of Marriage Act, which permits states to refuse to recognize same-sex marriages performed in other states.

Following the on the heels of the DOL's proposal, on July 1, U.S. District Judge John G. Heyburn II concluded that Kentucky's prohibition on same-sex marriage violates the Equal Protection Clause by treating same-sex couples differently than heterosexual couples. Heyburn previously struck down Kentucky's ban on recognizing same-sex marriages from other states and countries, but he put the implementation of that ruling on hold. The decision will likely be appealed. In addition, the U.S. 6th Circuit Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session, on Aug. 6. The cases are unique and involve different facts, but each deals with whether statewide gay marriage bans violate the Constitution.

While it is too early to know what will be the end result with the recent Heyburn ruling or the slew of cases to be heard in the Sixth Circuit Court of Appeals, it is highly likely the DOL's proposed definition will become law. Employers, especially those in states that do not recognize same-sex marriage, should keep an eye on the development so that they can revise and implement policy and procedures to be compliant with federal law.

The proposal was published in the Federal Register on June 27 and interested parties can submit written comments on the proposal atwww.regualtions.govuntilAugust 11, 2014.

DOL Issues Notice of Proposed FMLA Rule that Offers Equal Leave Rights to Same-Sex Spouses

On June 20, 2014, the U.S. Department of Labor ("DOL") issued a notice of proposed rulemaking regarding the definition of "spouse" under the Family and Medical Leave Act ("FMLA"). If adopted, employees in same-sex marriages will be eligible to take all types of spouse-related leave protected under the FMLA regardless of whether the states in which they reside recognize the employees' marriages.

Introduction

The FMLA, which applies to employers with fifty or more employees, allows eligible employees to take unpaid, protected leave in a variety of circumstances. Generally, the FMLA protects employees who have worked for a covered employer for at least twelve months (and for a certain number of hours) at a site where at least 50 employees are employed either at the same site or within 75 miles.

The FMLA protects several types of leave, including parenting leave, leave for a serious health condition (the employee's condition or the condition of a family member), military exigency leave, and military service member leave. The FMLA's definition of the term "spouse," as currently drafted, impacts an employee's ability to take leave in a number of situations, including:

• to care for a spouse with a serious health condition;
• to care for a stepchild with a serious health condition;
• to care for a stepparent with a serious health condition;
• to take exigency leave for a spouse's military service; and
• to take military caregiver leave for a spouse.

The DOL's proposed rule seeks to modify the definition of "spouse" to extend spouse-related leave to all legally married same-sex couples regardless of where they live. Under the FMLA's current implementing regulations, same-sex couples are considered spouses for leave purposes only if they reside in a state that recognizes same-sex marriage.

The DOL's Notice of Proposed Rulemaking

In June, the DOL issued a notice of proposed rulemaking regarding the FMLA's definition of the term "spouse."See, e.g., DOL, Wage & Hour Div.,Fact Sheet: Proposed Rulemaking to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations, availablehere.See alsoDOL, Wage & Hour Div.,Family and Medical Leave Act: Notice of Proposed Rulemaking to Revise the Definition of "Spouse" Under the FMLA, availablehere.

Since 1995, the FMLA's definition of the term "spouse" has been linked to the law of the state in which the employee resides. The FMLA's current regulations define the term as "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides[.]" However, following the 1996 enactment of the Defense of Marriage Act ("DOMA")which restricted the definition of "marriage" to legal unions between a man and a woman, and "spouse" to a member of the opposite sexthe DOL issued an opinion letter indicating DOMA's definitions applied to the FMLA. Thus, DOMA limited the availability of FMLA leave premised on the marital relationship to opposite-sex couples.

In 2013, the Supreme Court held inU.S. v. Windsorthat DOMA's Section 3 (which included the definitions of "marriage" and "spouse') was invalid, finding the provisions unconstitutional under the Fifth Amendment.Windsor's invalidation of DOMA triggered a return to the FMLA's reliance on state law to govern the definition of "spouse" for eligibility purposes. As such, post-Windsor, same-sex couples residing in states that recognize same-sex marriage (like Minnesota) are eligible for FMLA spousal leave, while same-sex couples residing in states that do not (like Wisconsin) are denied the same protections.

The DOL's proposed rule seeks to amend the term "spouse" from one premised on employee residency to one premised on the place of celebration. Under the rule, the availability of spousal leave would no longer depend on the law of the state of residency, but would instead depend on the law of the place the employee entered into his or her marriage. Thus, as long as an employee entered into a legal marriage in a state or country that recognizes same-sex marriage, he or she would be entitled to spousal leave under the FMLA.¹

In operation, the proposed rule would ensure that all legally married individuals are entitled to comprehensive FMLA protection, including spousal leave, regardless of where they live. The rule would also eliminate any remaining confusion regarding eligibility in the wake ofWindsor. Indeed, in light of the confusionWindsorleft in its wake, many employers proactively amended their FMLA policies to extend spousal leave to all employees in same-sex marriages, irrespective of residency, to avoid the divergent results created by the current "residency rule." Given the DOL's pending rulemaking, more employers may be disposed to follow suit. Employers who have not yet done so should stand ready to update their policies as needed and be prepared for a potential increase in protected leave requests. All employers should stay tuned for further developments as the DOL, and the courts, continue to refine this significant area of the law.

Conclusion

The DOL's proposed rule seeks to ensure that all legally married same-sex couples enjoy full access to FMLA rights. The proposed rule, now published in the Federal Register, will go through a public comment period, which ends on August 11, 2014.See id. Covered employers are encouraged to monitor the rule and prepare for timely compliance.

1 The DOL's proposed definition provides as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.