February 23, 2015 at 5:07 pm EST | by Chris Johnson
Final rule to grant same-sex couples access to FMLA
Thomas Perez, United States Department of Labor, gay news, Washington Blade, Bayard Rustin

U.S. Labor Secretary Thomas Perez announced a new rule to ensure same-sex couples have access to FMLA benefits. (Washington Blade photo by Jon Wooten)

Married same-sex couples will soon be eligible for benefits under the Family & Medical Leave Act even if they live in a state that doesn’t recognize their union, the Labor Department announced Monday.

In a statement, Labor Secretary Thomas Perez said a new rule is set to be final that will ensure individuals in same-sex marriages have access to federally protected leave from work to care for spouses with serious medical conditions.

“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,” Perez said. “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families – without the threat of job loss.”

According to a Q&A accompanying the announcement, the final rule changing existing policy under the Family & Medical Leave Act is set for publication on Wednesday and will take effect on March 27.

The rule change is consistent with the Obama administration’s stated goal of extending the federal benefits of marriage to the greatest extent possible to same-sex couples, regardless of their state of residence, in the aftermath of the U.S. Supreme Court’s 2013 decision against the Defense of Marriage Act.

The Obama administration has granted certain benefits to married same-sex couples — such as immigration, tax, federal employee and employer-provided pension benefits — regardless of whether or not these couples live in a state with marriage equality.

But benefits under the Family & Medical Leave Act were previously unavailable to married same-sex couples living in one of the remaining 13 states that prohibits recognition of their unions. Regulations looked to the state of residence, not the state of celebration, to determine whether a couple is married.

Emily Hecht-McGowan, director of public policy for Family Equality Council, said the rule change is essential for same-sex couples who need access to benefits under the Family & Medical Leave Act.

“The Family and Medical Leave Act is the only federal law helping Americans balance the demands of both work and family,” Hecht-McGowan said. “Since its passage in 1993, FMLA leave has been used more than 200 million times but until today, it was not fully accessible to LGBTQ workers. The Department of Labor has done an outstanding job of ensuring full and fair implementation of the Windsor decision and this final rule is a critical step in ensuring LGBTQ workers can care for themselves and their spouses – regardless of where in the country they live – without jeopardizing their jobs or economic security.”

The rule change from the Labor Department was expected. One year after the DOMA decision in June, the Labor Department announced it was preparing the change in regulation to ensure married same-sex couples have access to the Family & Medical Leave Act regardless of where they live.

Tico Almeida, president of Freedom to Work, was among the advocates pushing for the rule change and commended the Labor Department for enacting it following the DOMA decision.

“We applaud Labor Secretary Tom Perez and Wage & Hour Administrator, Dr. David Weil, for their robust interpretation of the Windsor decision so that gay and lesbian employees now have strong workplace leave protections no matter which state they call home,” Almeida said. “We are also hopeful for another Supreme Court decision this year that would make the state-of-residency issue moot by bringing marriage equality to all 50 states. But no matter what happens with the court, LGBT workers across the country should know that the Labor Department’s doors are now open to receive legal complaints when employers unfairly deny them leave requests to care for same-sex spouses.”

Other issues for same-sex couples living in non-marriage equality states remain in the wake of the Supreme Court’s decision. Access to spousal veterans benefits, Social Security benefits and copyright ownership is still denied because U.S. code looks to the state of residence, not the state of celebration, to determine whether a couple is married.

On its face, those can’t be changed as easily because the prohibitions are in federal law, not regulation. But LGBT advocates, including Sen. Dianne Feinstein (D-Calif.), have said blocking spousal veterans and Social Security benefits to same-sex couples in non-marriage equality states violates the spirit of the DOMA decision.

David Stacy, the Human Rights Campaign’s director of government affairs, said no federal benefit should be denied to a married same-sex couple because of state of residence.

“Until the Supreme Court settles the issue of full nationwide marriage equality this summer, fairness and equality – and the Supreme Court’s decision in the Windsor case – demanded this important change,” Stacy said. “We applaud the Obama Administration for continuing to ensure all legally married couples have access to the same federal rights, protections, and privileges that come with marriage wherever possible.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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