The Family and Medical Leave Act is one of many labor laws that have helped defend American workers. Established in 1993, the FMLA provides eligible employees, defined so by a particular set of criteria, with a legal means to take up to 12 weeks of annual unpaid, job-protected leave for specific medical and family-related reasons. This allows the employee to seek or provide care in the event of a serious health condition for themselves, a newborn child, spouse, spouse’s child, parent, as well as selective military family leave for any of the aforementioned parties.

The intent of FMLA is clear: unforeseen medical conditions to an employee or their family should not impact their employment status, and eligible employees’ existing health care coverage is to remain under the same conditions as those available and present when the employee is at work. When the leave conditions end or FLMA leave expires, the employee is to return to the same or equivalent position, pay, employee benefits and other similar terms and conditions of their employment prior to their leave.

Same-sex marriage changes

In February 2015, the Department of Labor, in response to changing social conditions and the laws associated with these changes, including the Defense of Marriage Act, determined that FMLA protection should be changed. That’s why, effective March 27, 2015, the FMLA will redefine the conditions of who is a spouse, providing coverage for more married same-sex couples.

Previously, if a same-sex couple married in a state that recognized same-sex marriage but lived in a state that did not, FMLA benefits would not have extended to the same-sex spouse. Now, eligible employees are included as long as the same-sex marriage was performed in a state that legally recognizes same-sex marriages, instead of relying on the previous laws from the state where the same-sex couple resides — moving from the “state of residence” rule to the “place of celebration” rule.

Employer-provided coverage remains the option of the employer, and is guided and governed by ERISA, which maintains minimum standards and requirements for this coverage. And this shift from “state of residence” rule to the “place of celebration” rule does not change any other requirements for FMLA. This change provides consistency among legally recognized same-sex couples and opposite-sex couples, largely recognizing them as one and the same regardless of where they live or the state laws that govern same-sex marriage.

It’s also important to remember that fully insured plans remain subject to state insurance regulations — and coverage could be subject to similar state laws concerning same-sex marriage. Fully insured plans in a state that has anti-discrimination laws that include language identifying sexual orientation as a protected characteristic must cover same-sex spouses just as it would cover opposite-sex spouses. Self-funded benefit plans should include same-sex spouses unless language explicitly defines spouses in a way that clearly excludes same-sex spouses.

While these FMLA changes don’t require any immediate action or changes to employers’ benefit plans, these changes could serve as a stepping stone for federal officials and agencies to further extend their reach into benefits programs. Because the DOL oversees and enforces FMLA and ERISA regulations (which sets employers’ minimum requirements for employee benefits), it will be interesting to see what, if any, overlap there is between the two.

Fleet is president of AmWINS Group Benefits, a wholesale broker of comprehensive group insurance programs and administrative services. He can be reached at asksam@amwins.com.

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