On March 27, 2015, the United States Department of Labor’s (DOL) Final Rule revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA) to further expand coverage for same-sex couples goes into effect. For the first time, same-sex couples legally married in a state that recognizes same-sex marriages but who reside in a state that does not recognize their marriage will be categorized as “spouses” for purposes of the FMLA. This Final Rule moves FMLA regulations from a “state of residence” rule to a “state of celebration” rule. 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.

Prior to the Final Rule’s implementation, the DOL defined spouse to include only a person involved in a marriage recognized by the state in which he or she lived. If a same-sex couple was legally married in a state that recognized same-sex marriages but resided in a state that did not, the spouses would not be recognized as such under the FMLA. This Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b).

The FMLA entitles eligible employees of covered employers to take unpaid leave for family and medical reasons. This Final Rule will have a specific and direct impact on employers. Rather than simply determining whether an eligible employee is “married” under the employer’s state’s definition, an employer will need to look to the laws of the state in which its same-sex employees are married. If a marriage is legal in the state of celebration, a covered employer must provide FMLA benefits to that employee.

This change will allow an eligible employee, regardless of where he or she lives, to take FMLA leave to care for a lawfully married same-sex spouse with a serious health condition, take qualifying exigency leave due to a lawfully married same-sex spouse’s covered military service, or take military caregiver leave for a lawfully married same-sex spouse. In addition, an eligible employee will be able to take FMLA leave to care for a stepchild (child of an employee’s same-sex spouse) or care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee. Employers subject to compliance with the FMLA should take note of these changes and update their employment practices as necessary.