It’s Official: Family and Medical Leave Act Now Includes Spouses of Gay Feds

The Office of Personnel Management on Friday published the final rule changing the statutory language allowing federal employees in same-sex marriages to take time off to care for ill spouses.

The definition of “spouse” will be changed officially as of May 9 in OPM’s Family and Medical Leave Act regulations to include same-sex spouses. Gay married federal employees have been able to take FMLA leave to care for sick spouses since June 2013 when the Supreme Court overturned Section 3 of the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman and prevented same-sex spouses of federal employees and retirees from accessing benefits available to opposite-sex spouses of government workers.

In October 2013, OPM issued guidance to agencies noting employees could use FMLA leave -- which allows employees to take 12 weeks of unpaid time off in a 12-month period -- to care for their same-sex spouses, retroactive to the Supreme Court’s ruling. The final rule, coming nearly three years after the Supreme Court’s decision, codifies that guidance in federal statute. OPM published the proposed rule on the change back in June 2014.

The Labor Department, which issues FMLA regulations for mostly non-federal employees, published its final rule in February 2015 on changing the definition of spouse under FMLA to include same-sex spouses.

OPM has regularly released guidance since the 2013 Supreme Court decision reminding federal employees in same-sex marriages of the changes in benefits eligibility for their spouses. As a result of United States v. Windsor, all legally married same-sex couples are eligible for self and family and self-plus-one enrollment in the Federal Employees Health Benefits Program. Same-sex spouses of feds and retirees also are eligible for life insurance under Federal Employees Group Life Insurance, long-term care coverage, retirement benefits and flexible spending accounts. Same-sex spouses and their children are treated the same as heterosexual married families for benefits purposes, the OPM has stated in guidance.

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