Summertime Worries: DOL Proposes Changes to the FMLA and the ACA Isn’t Going Away

Ah, summertime…the days are longer, the hassles are less, and due to vacations and heat and humidity induced inertia, the human resources professionals can take a deep breath – right? Well before you dive into the pool, river, lake, or ocean, take a moment to consider two important changes likely coming to your organization.

First, today, the Department of Labor announced that it is publishing a Notice of Proposed Rulemaking to revise the definition of spouse under the FMLA in light of the U.S. Supreme Court’s decision last year in United States v. Windsor regarding same sex marriage. You may recall that after Windsor, the DOL announced that it would be taking a “state of residence” approach to determining when companies were required to offer FMLA leave to employees to care for their same sex spouse. Under the “state of residence” rule, if the state in which the employee lived did not recognize same sex marriage, then the definition of “spouse” under the FMLA did not apply to same sex spouses, even if they had been legally married in accordance with the rules of another state. For employers in North Carolina, this means that currently, the definition of “spouse” under the FMLA does not include same sex spouses.

The proposed definition of spouse issued today would require employers to treat same sex spouses the same as opposite sex spouses regardless of their state’s position on same sex marriage. The definition adopts a “state of celebration” rule for the FMLA, meaning that the parties to the marriage will be considered spouses, so long as their marriage was valid pursuant to the laws of the state in which they were married, regardless of where they currently live. The proposed definition also expressly references the inclusion of same-sex marriages in addition to common law marriages and will encompass same-sex marriages entered into abroad so long as the marriage could have be entered into pursuant to the laws of at least one U.S. state.

The DOL proposes to define spouse 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 a place where entered into and could have been entered into in at least one State.”

Before the rule becomes law, the DOL will have a comment period for interested parties to submit written comments on the proposed rule. The comment period has not yet been set, but will be soon, when the proposed rule is published in the Federal Register. Until we know the comment period, predicting when this rule may become law or if it will change significantly from the proposal is difficult.

Based on my experience, many employers may welcome this clarity. Many NC employers have offered more generous FMLA policies that provide FMLA-like leave to same sex spouses, but then have been faced with difficulties: benefit plans that will not agree to allow the employee to stay on the plan while on the leave because it is not true FMLA leave pursuant to current law or with an employee who takes the FMLA-like leave to care for a same sex spouse, but then is still entitled to true FMLA leave under the law for another qualifying event.

Stay tuned to see how quickly this becomes law.

Second, when the Affordable Care Act employer mandates were postponed last year, many employers put worrying about their ACA requirements on the back burner, hoping that the delay forecasted changes ahead that would diminish or eliminate their liability. Instead, we received final regulations on a number of issues this spring and now, we are again half way through 2014, with the mandate on the horizon for 2015 for employers with 100 or more FTEs and 2016 for employers with 50 or more FTEs. Given the look back periods, even if you are an employer with only 50 FTEs, you need to start considering your options for 2016 now, including potential work force or corporate redesigns. As a result, several of my next blogs will address the ACA – what you don’t already know and what you may have forgotten in the hopes of changes that have not come.

So, while you are sunning yourselves at the pool, I’ll be the nerd in the shade going through pages of ACA regulations. That’s okay, I detest the smell of sunscreen anyway!

Happy Summer!

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