The Department of Labor (“DOL”) is publishing a Notice of Proposed Rulemaking (“NPRM”) to revise the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) in light of the United States Supreme Court’s decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional.  The NPRM appears designed to bring the definition of “spouse” under FMLA in line with DOL’s previously issued “Guidance to Employee Benefit Plans on the Definition of ‘Spouse’ and ‘Marriage’ under ERISA.”

The FMLA allows eligible employees up to 12 weeks of job protected unpaid leave to care for a spouse, child, or parent who has a serious health condition.  Currently, the FMLA  identifies a spouse as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works).  DOL proposes to move from the “state of residence” rule to a “state of celebration” rule, which is based on where the  couple entered into marriage.  The “state of celebration” rule would look to the state in which the coupled married, not the state in which they reside, to determine lawful spousal status. The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one U.S. state.

DOL proposes to re-define the term “spouse” as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

DOL has published “Frequently Asked Questions,” which include various scenarios and how the new rule would apply, on its website, which can be found at http://1.usa.gov/1jmwig0

Once published in the Federal Register, the NPRM will specify specific dates for a public comment period during which interested parties will be invited to submit written comments on the proposed rule at www.regulations.gov. Only comments received during the comment period identified in the Federal Register published version of the Notice of Proposed Rulemaking will be considered part of the rulemaking record.

Woods Rogers will keep you posted as this issue continues to develop toward a final rule.

Article brought to you by:
Thomas M. Winn III
Principal
Labor and Employment Practice Group