As anticipated, the Department of Labor ("DOL") issued a new rule on February 23, 2015, revising the definition of "spouse" for purposes of the Family and Medical Leave Act ("FMLA"). The updated definition of "spouse" now extends FMLA leave rights and job protections to eligible employees in same-sex marriages entered into in a state where same-sex marriage is legally recognized, regardless of the state in which the employee currently works or resides. The new rule is effective March 27, 2015.
Prior to this new rule, the FMLA definition of "spouse" was based on whether the marriage was recognized in the state in which the employee resided, as opposed to where the marriage actually took place. As a result, this meant that the FMLA did not include same-sex spouses or common law spouses if the employee resided in a state that did not recognize the employee's same-sex marriage. The DOL acted to modify that rule in response to the U.S Supreme Court’s 2013 decision in United States v. Windsor, which struck down as unconstitutional the Defense of Marriage Act provision that defined "spouse" as a person of the opposite sex.
The new rule brings consistency to application of the FMLA’s terminology. Under the revised definition, a spouse is determined by looking to the law of the place where the marriage was entered into – referred to as the "place of celebration.” An employee who gets married in a state recognizing same-sex marriage who subsequently moves to a state that does not recognize same-sex marriage retains rights under the FMLA despite the law of the state of residence. An eligible employee who enters into a legal same-sex marriage in a foreign country is eligible for FMLA leave and job protection upon returning to a state that does not recognize same-sex marriage.
The DOL’s new rule also addresses state-recognized common law marriages for FMLA purposes. Employees entering into legal common-law marriages retain their FMLA rights when moving to a state that does not recognize common-law marriage. Employers should note, however, that the rule does not consider individuals in civil unions or domestic partnerships to be “spouses” under the FMLA's definition.
What steps should an employer take?
With this revision to the FMLA definition of "spouse,” employers now must provide leave and job protection rights available under the FMLA to all employees in same-sex and common-law marriages, regardless of whether the employee's state of residence permits same-sex or common-law marriage. To ensure compliance, employers should:
- Review FMLA policies and forms and, if necessary, update them to comply with the new rule no later than the rule’s effective date of March 27, 2015
- Employers should train HR personnel, leave administrators, and supervisors on the new rule
A copy of the DOL’s Fact Sheet on the new rule is available on their website.