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FMLA embraces same-sex marriage

Another barrier has fallen for same-sex married couples. For the past couple of years, Minnesota has watched as other states struggle with the constitutionality of same-sex marriage laws. We know, of course, that there is work to be done to equalize or to neutralize every discriminatory law here, but we know, too, that we have made tremendous progress. We know that we have become another haven for couples that wish to marry in their home states but cannot.

When the Supreme Court handed down the decision in U.S. v. Windsor -- the case that found the Defense of Marriage Act's definition of marriage unconstitutional -- everyone understood that all laws everywhere would not change overnight. Federal regulations in particular take time to amend, and some have gone to the courts for clarification. Slowly but surely, the law is catching up with Windsor.

This week, the Department of Labor issued a new rule that extends the provisions of the Family and Medical Leave Act to same-sex spouses. As with DOMA, the change comes to a definition, this time of the word "spouse." Until Feb. 23, the rule did not entirely exclude same-sex spouses, though.

Instead, the rule did not recognize a same-sex spouse if the employee's state of residence did not recognize same-sex marriage. Not anymore.

There is another "however" coming, though. The rule now applies to same-sex spouses if the marriage was legal in the state in which it occurred. Married in Minnesota but live at the other end of Interstate 35 (Texas)? Yes, your marriage is recognized under the FMLA.

What isn't clear is whether the definition takes into consideration the fact that laws change. Last year, for example, an Arkansas circuit judge ruled that the state's ban on same-sex marriage was unconstitutional. Couples obtained marriage licenses right away. Then the Arkansas Supreme Court issued a decision stating that the ban was still law. Those marriage licenses turned into -- and remain -- scrap paper.

That gray area may not be addressed by the rule change, but this is, nonetheless, a step forward. A statement from Secretary of Labor Thomas E. Perez expressed the impact of the rule change with elegance: "The basic promise of the FMLA is that no one should have to choose between the job and income they need and caring for a loved one."

Source: Business Insurance, "Legally married same-sex couples receive family leave in all states," Jerry Geisel, Feb. 24, 2015

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