The Department of Labor’s Wage and Hour Division announced yesterday that it is revising the Family and Medical Leave Act’s (“FMLA”) definition of “spouse” to include employees in legal same-sex marriages, regardless of where they live. Among other things, this change in the definition of “spouse” enables eligible employees in legal same-sex marriages to take FMLA leave to care for a spouse with a serious medical condition. The final rule is effective March 27, 2015.
Currently, the FMLA regulations define “spouse” as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 C.F.R. § 825.102. The final rule shifts the focus from where an employee resides to where the marriage was celebrated and expressly defines “spouse” to include 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.” As a result, spouses in same-sex marriages will have the same ability as all spouses to fully exercise their FMLA rights, regardless of whether the state in which they reside recognizes same-sex marriage. Employers must only consider whether the same-sex marriage was legal in the state where it was celebrated in determining whether an individual qualifies as a “spouse” under the FMLA.
This change is in response to the United States Supreme Court’s June 26, 2013 decision inUnited States v. Windsor, 133 S.Ct 2675 (2013), which held section 3 of the Defense of Marriage Act (DOMA) unconstitutional under the Fifth Amendment. Once section 3 of DOMA was struck down, the Department of Labor’s position is that it was no longer prohibited from recognizing same-sex marriage as a basis for spousal leave.
According to the final rule, as of February 13, 2015, 32 States and the District of Columbia extend the right to marry to both same-sex and opposite-sex couples (Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming). In addition, on January 16, 2015, the Supreme Court granted review of the Sixth Circuit’s decision upholding state law bans on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee. See DeBoer v. Snyder, No. 14-571, 2015 WL 213650 (S. Ct. Jan. 16, 2015). The Department of Labor further identified 18 countries recognizing same-sex marriage (Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, Finland, France, Iceland, Luxembourg, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, and Uruguay).
The Department of Labor’s revision to the FMLA’s definition of “spouse” was not unexpected after the Windsor decision, and this change makes clear to employers what their obligations are with respect to providing FMLA to employees in same-sex marriages. Employers should also take note that the Department of Labor expressly declined to modify the current regulation governing what information an employer may require from employees who request leave to care for a family member. It therefore remains the case that an employer may only request reasonable documentation of a family relationship such as a simple statement from the employee or documentation such as a birth certificate or court document. 29 C.F.R. § 825.122(k).