Revised Definition of "Spouse" Under FMLA Incorporates Same-Sex Marriages

The Department of Labor has issued a final rule that amends its FMLA regulations and provides employees in same-sex marriages the right to take leave to care for a spouse with a serious medical condition.  The new rule, published on February 25, 2015, comes on the heels of the Supreme Court’s decision in United States v. Windsor, which declared as unconstitutional a provision of the Defense of Marriage Act limiting the definition of “spouse” to opposite-sex marriages.

The most significant aspect of the new rule is that spousal status is now determined based on the place where an employee entered into marriage, or the “place of celebration.”  Previously, the DOL had determined spousal status based on a “place of residence” rule, which effectively deprived same-sex employees from qualifying as a spouse if they lived in a jurisdiction where same-sex marriages were not recognized.  Under the new rule, and according to the DOL, the “place of celebration” rule will allow all legally married couples to have uniform rights regardless of where they live.

The DOL’s comments to the new rule suggest that employers should see a decrease in administrative burdens under the new rule.  To the extent this is true, it will probably be most apparent for multi-state employers, who will not have to “consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.”