Late last month, the Department of Labor issued a final rule that expands the definition of “spouse” for purposes of taking leave under the Family and Medical Leave Act (FMLA). The FMLA is a federal law that requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees for certain medical and caretaking reasons. Among those reasons, employees may take leave to care for a spouse with a serious health condition, care for a spouse seriously injured in the military, or attend to certain needs that arise from a spouse’s call to active military duty.
When the Defense of Marriage Act (DOMA) was still intact, “spouse” was defined as a husband or wife of the opposite sex. However, after the U.S. Supreme Court struck down the the portion of DOMA that defined marriage as between one man and one woman, the DOL revised its regulations. In 2013, the DOL revised the definition of “spouse” to include same-sex couples, but only if they lived in states that recognized same-sex marriages (called a “place of residence” rule).
But, this rule meant that same-sex couples were treated differently under the FMLA depending on what state they lived in. To correct this unequal treatment, the DOL issued a new rule last month to move to a “place of celebration” rule. Under the new rule, a spouse includes a same-sex spouse, as long as the marriage was valid in the place where it was entered into. In other words, as long as the marriage took place in a state that recognizes same-sex marriages, an employee can take leave to care for a same-sex spouse, regardless of what state the employee currently lives in.
A similar rule applies to spouses who were married in foreign county: The marriage must have been valid in the country where it was entered into. But, there’s an additional requirement: The marriage must also be capable of being entered into in at least one state. In other words, if the marriage would have been illegal in all 50 states, the couple will not be considered spouses under the FMLA.
The DOL regulations are scheduled to take effect on March 27, 2015. This means that employers in states that don’t recognize same-sex marriage will need to adjust their company policies. As long as an employee is legally married in any state, the employer will have to provide FMLA leave for the employee to:
- care for a same-sex spouse with a serious health condition
- care for a same-sex spouse who suffered a serious injury or illness while on active military duty, and
- attend to certain needs arising from a same-sex spouse’s call to active military duty.
For more information on the FMLA, check out The Essential Guide to Family and Medical Leave, by Lisa Guerin and Deborah England (Nolo).