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New rule on when same-sex spouses are entitled to FMLA leave

Here’s a complicated wrinkle for businesses that have employees who are in a same-sex marriage.

The question is whether these employees are “married” for purposes of the federal Family and Medical Leave Act, such that they’re eligible to take time off to care for a spouse.

Previously, the IRS has ruled that employees are “married” for purposes of employee benefit plans if same-sex marriage is legal in the state where the marriage occurred.

But now, the U.S. Department of Labor says that employees are “married” for purposes of FMLA if same-sex marriage is legal in the state where the employee resides.

So imagine that a company is on the border between Maryland and Virginia. If a gay employee lives in Maryland and got married there, he’s “married.” But if he moves across the state line to Virginia (which doesn’t recognize same-sex marriage), he’s now “married” for purposes of health insurance, but unmarried for purposes of family and medical leave.

This disparity is going to create a lot of complicated situations for employers.

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