Final Rule Issued on FMLA Definition of “Spouse”

Originally published by Eric Welter.

On February 25, 2015, the U.S. Department of Labor (“DOL”) issued a final rule changing the regulatory definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to permit individuals in valid, same-sex marriages to receive FMLA spousal care protection.

The change comes in the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), which struck down Section 3 of the Defense of Marriage Act (“DOMA”) “as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” Windsor, 133. S. Ct. at 2680.

The change also comes in reaction to President Obama’s Statement directing the Attorney General, in concert with the cabinet, to review all pertinent federal statutes and ensure that the dictates of Windsor are implemented “swiftly and smoothly.”

The FMLA defines spouse as simply a husband and wife, and this broad definition has been interpreted under the laws of the state where the employee resides. Following the Supreme Court’s ruling finding the Defense of Marriage Act (“DOMA”) unconstitutional, the Department permitted employees in same-sex marriages residing in a state that recognized the marriage to take FMLA leave for spousal care.

The changes moved DOL from a “place of residence” rule to a “place of celebration” rule when determining the validity of a marriage pursuant to the FMLA. Under the place of celebration rule, employees in same-sex marriages who were lawfully married in states recognizing same-sex marriage are permitted to receive FMLA leave benefits, even if they currently reside in a state that does not recognize same-sex marriage.

This means that legal, same-sex couples are now free to reside in the state of their choice without having to worry about their access to certain FMLA benefits. The new rule also includes same-sex marriages entered into abroad that could have been entered into in at least one state. The rule is effective on March 27, 2015.

Laconic Lookout: The Department’s new rule marks a significant expansion of same-sex couples’ statutory rights. The new policy allows legally married, same-sex couples to enjoy the same FMLA benefits as opposite-sex couples. This includes the ability to take unpaid, job-protected time off in order to care for one’s spouse or family member, access to exigency leave when a lawfully married spouse is on qualified military duty, the ability to take military caregiver leave, and so forth. While previous federal government actions granted LGBT federal employees and contractors with anti-discrimination protection, the new rule impacts private sector employers as well.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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