On February 25, 2015, the U.S. Department of Labor (DOL) adopted new regulations that define the term “spouse” for purposes of the FMLA based on the “place of celebration” rule. Under this rule, the term “spouse” includes all legally married individuals, same-sex or opposite-sex, regardless of the law of the state where the employee currently resides or works. The new regulations, which become effective on March 27, 2015, can be found here, and a DOL Fact Sheet regarding the new regulations can be found at here.
Previously, the DOL defined the term “spouse” according to the law of the state in which the employee resides (state of residence), rather than the state in which the employee was married (place of celebration). Adoption of the “place of celebration” rule will now ensure that all legally married employees, whether same-sex or opposite-sex, or married under common law, have consistent FMLA leave rights regardless of where they live.
The DOL revised the definition of “spouse” in response to the United States Supreme Court’s decision in United States v. Windsor, 132 S. Ct. 2675 (2013), which struck down Section 3 of the Defense of Marriage Act’s (DOMA) definition of spouse under federal law as the union of a man and woman. After Windsor, President Obama instructed federal agencies, including the DOL, to revise relevant federal statues to implement the Windsor decision.
Under the new regulations, the term “spouse” now includes individuals “in a same-sex or common law marriage” and encompasses relationships where the marriage has been entered outside of the United States if the marriage could have been lawfully entered into in at least one state in the United States. Furthermore, this change now permits employees in legal same-sex or common law marriages to take leave to care for step-children or step-parents, regardless of the existence of the in loco parentis relationship. It is important to note that domestic partnerships and civil unions still do not constitute marriages under the FMLA.
Given this major change to the FMLA, employers should ensure they provide all required FMLA leave, including caring for a spouse with a serious health condition, taking qualifying exigency leave due to a spouse’s covered military service or taking military caregiver leave for spouse to all legally married individuals, regardless of the law of the state where the employee currently resides or works. Also, employers should examine their FMLA policy and related forms to ensure that they comply with the FMLA’s new definition of “spouse.”