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Recent Updates in FMLA Legislation

This week’s blog post is brought to you by Optis’ Business Development Analyst, David Spring.

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If you manage FMLA leave, you’ve most likely heard the recent news that the Department of Labor's (DOL) Final Rule on the definition of spouse has been temporarily stayed in four states. The final rule was issued February 25, 2015 by the DOL and aimed to increase the consistency across the United States in how the FMLA is provided to same-sex spouses. So, if you’re legally married, based on the state of celebration, you’d be entitled to take FMLA protected time for your spouse. That means same-sex couples married in California would receive the same FMLA spousal benefits even if they move to Georgia, which has a ban on same-sex marriage. Why? Because the state of celebration is California.

This final rule aimed to change the previous state of residence rule, which required employees live in a state recognizing same-sex marriage to receive the protected leave entitlement. Under that rule, a couple moving to Georgia would have “moved away” from the spousal FMLA benefits they were entitled to, having tied the knot in California.

But keep reading...

Back to our point earlier, as of April 8, 2015, the DOL will not be taking action to enforce the Final Rule in Texas, Arkansas, Louisiana and Nebraska. The DOL is recognizing a preliminary injunction issued by the United States Court for the Northern District of Texas, Wichita Falls Division. The injunction was issued on behalf of these states, which argue that enforcement of the Final rule would be contradictory with existing state laws defining marriage. A hearing is scheduled for Monday, April 13 in order to resolve, but until that time providing same-sex spousal FMLA leave to employees in those states is not protected or required.

Here’s what didn’t change -

Documentation requirements associated with confirming family relationships did not change with the final rule issued on February 25, 2015. Existing regulations associated with Sec. 825.122 (k) will remain in effect. What this means is that the same regulations guiding employers to confirm any type of FMLA-related leave family relationship are the same. So, confirming a child is not different than confirming a same-sex marriage. These regulations allow employers to require employees to provide “reasonable documentation or a statement of family relationship.” So, whether an employee provides a birth certificate for a new child or a marriage certificate for a same-sex marriage, it is at the employee’s discretion; the employer must accept verbal confirmation as well as proof of the family relationship.

If you need additional guidance on tracking absence, don’t miss the Optis-sponsored Blogging4Jobs podcast which answers a wide variety of commonly asked questions having to do with FMLA, workers’ comp and disability.