A (same sex) spouse is a spouse…regardless of where a couple marries. In a completely expected move, the DOL has amended the FMLA to Revise the Definition of “Spouse” Under the FMLA.
The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.
The Department of Labor will issue a Final Rule tomorrow— February 25, 2015—revising the regulatory definition of spouse under the Family and Medical Leave Act of 1993 (FMLA).
The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This change recognizes the state of celebration and not the state of domicile.
This change will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.
The effective date for the final rule is March 27, 2015.
Major features of the Final Rule
- The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
- The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.
Additional Information on the Final Rule Can Be Found Here:
Article brought to you by:
Victor O. Cardwell
Chair, Labor and Employment Practice Group