New FMLA Rule Updates Definition of Spouse

We want to alert you to a new final rule under the Family and Medical Leave Act (FMLA). The rule updates the regulatory definition of “spouse” to reflect a “place of celebration” approach to same-gender marriage. As a result, an eligible employee in a legal same-gender marriage will be able to take FMLA leave for his or her spouse, regardless of the state in which the employee resides. The U.S. Department of Labor rule will become effective March 27, 2015. The new definition is a departure from the FMLA’s current regulatory language, which does not include same-gender spouses under the definition of “spouse” if an employee resided in a state that did not recognize same-gender marriage (the “state of residence” approach).

We will not be updating the FMLA policies in our Handbook Builder because “spouse” is not defined in the provisions. Therefore, the term “spouse” as used in your Handbook is inclusive and meets the new definition.

This regulatory change was spurred by the U.S. Supreme Court decision in U.S. v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-gender marriage for federal-law purposes. Post-Windsor, DOL adopted the “state of residence approach to same-gender marriages.

In a Feb. 23 fact sheet, DOL noted that because of the final rule, eligible employees will be able to take FMLA leave to care for their lawfully wed same-gender spouse, regardless of where they live, when:

• caring for their same-gender spouse with a serious health condition;
• taking qualifying exigency leave due to their same-gender spouse’s covered military service; or
• taking military caregiver leave for their same-gender spouse. (Here, the DOL approach is consistent with U.S. Department of Defense policy, which uses a place of celebration approach to determine if a military member is in a valid marriage.)

The fact sheet did note, however, that the new regulatory definition of spouse does not substantively alter the FMLA. For example, it does not change the FMLA’s eligibility requirements.

DOL also made clear that the regulatory change will benefit employers by reducing “the administrative burden on employers that operate in more than one state, or that have employees who move between states with different marriage recognition rules. Such employers will not have to consider the laws of the employee’s state of residence in determining the employee’s ability to take FMLA leave.”

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