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On March 25, the Definition of "Spouse" Changes

2/26/2015

The Department of Labor (DOL) announces that same-sex spouses will be covered under the Family Medical Leave Act (FMLA) regardless of where they reside.


In response to a 2013 Supreme Court decision which struck down the Defense of Marriage Act as unconstitutional, the DOL has issued its final rule revising the definition of spouse under the FMLA. The Department proposed to change the definition of spouse to ensure that all legally married couples, including same sex couples, will have consistent federal family leave rights regardless of where they live.

Effective March 27, 2015, a spouse, for the purposes of the FMLA, means “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 the place where entered into and could have been entered into in at least one state.” Prior to this new definition, eligible employees could take leave to care for their same-sex spouse only if the employee resided in a State that recognized same-sex marriage. The new rule includes a “place of celebration” provision that extends the protection of the FMLA to all legally married couples, including same-sex or common law couples, regardless of where they reside. Rather than focusing on whether the State of residence recognizes same-sex marriage, the new rule looks to the State where the couple was married or the “place of celebration.” Currently, 32 States and the District of Columbia extend the right to marry to same-sex couples.

While the new rule does not alter the eligibility requirements of the FMLA, it gives eligible employees the right to take FMLA leave to care for their “lawfully wed same-sex spouse” with a serious health condition, for qualifying exigency leave for their same-sex spouse’s covered military service or for military caregiver leave for their same-sex spouse. The FMLA already recognized the right of an eligible employee to take leave to care for the child of the employee’s same-sex partner as long as the employee provided day to day care or financial support for the child. However, under the new law an eligible employee in a same-sex marriage will be able to take FMLA leave to care for a stepchild regardless of the level of care or financial support. The DOL anticipates that the new rule will lessen the administrative burden of employers that operate in more than one state.

Employers with FMLA policies should consider revising their policies to include this new definition.