FMLA News from the DOL: Expanded Definitions and Expired Forms

 The United States Department of Labor (DOL) left employers scrambling this week with two pieces of news – FMLA rights for more same-sex couples and the expiration of the DOL model forms at the end of this month.

 What are the implications for employers?

1. Expanding the definition of “spouse” under the FMLA.

We’ve known that this change was coming for a while, but now we have a deadline – employers must update their policies and educate necessary personnel by March 27, 2015.

Under the new rule, spouse is defined according to the “state of celebration” rather than the “state of residence.” Basically, this means that married same-sex couples can now take FMLA leave regardless of whether the state where they work recognizes their marriage.

Eligible employees will now be able to take FMLA leave for the following reasons:

• To care for a same-sex spouse with a serious health condition
• To take qualifying exigency leave due to their same-sex spouse’s military service
• To take military caregiver leave for their same-sex spouse
• To care for the child of their same-sex spouse, whether or not they meet the in loco parentis requirement (providing day-to-day care or financial support for the child)
• To care for a stepparent who is a same-sex spouse of their parent, whether or not the step-parent ever stood in loco parentis to the employee

Note: Although the new rule means that same-sex and common-law marriages are now included under the FMLA, domestic partnerships remain excluded from FMLA protections. Keep in mind also that the new definition of spouse only affects employees taking FMLA leave; employees looking to take leave under state leave laws will only be eligible if the state of their employment recognizes their marriage.

2. DOL forms expire on Feb. 28.

This news might take some employers by surprise – wait, the FMLA forms expire? Don’t worry. Although this news has caused some confusion in the HR world, it has no implications for most employers.

The model FMLA forms currently available from the DOL date back to 2012, and are an updated version of forms released in 2009. But what was confusing for employers back in 2012 was that the DOL changed very little about the 2009 forms besides their new expiry date. They do not, for example, include amendments to FMLA military family leave rights, nor do they contain the safe harbor language required by the Genetic Information Nondiscrimination Act (GINA). The DOL has also clearly stated that employers do not need to use the DOL forms, but may create their own forms as long as they include the content required by the legislation.

For these reasons, employers have usually treated the DOL forms as a model for their own, adding language to cover their bases for the above instances. But the bottom line is that the expiration of the forms does not change your responsibilities as an employer in any way, since the legislation itself has not changed. Whether the DOL will ever update its forms in a timely fashion is still an open question!

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