On February 25, 2015, the Department of Labor (DOL) issued its Final Rule revising the definition of a "spouse" under the Family and Medical Leave Act (FMLA). Under the current regulations, employers need to consider the law of the state in which the employee resides to determine whether the employee is eligible to take FMLA leave for a same-sex or common-law spouse. The new regulations, which become effective on March 27, 2015, provide employees in legal marriages (same sex or otherwise) the ability to take FMLA leave to care for their spouse, regardless of the laws in the state in which the employee resides. As long as the employee has been legally married in a location (referred to as the "place of celebration") that permits same-sex or common- law marriages, the employee is married under the FMLA. This is true for individuals who were legally married outside of the United States, as long as the marriage could have been legally entered into in at least one state. This change is consistent with the change made to the definition of spouse under ERISA and the Internal Revenue Code that affected employee benefit plans shortly after the United States Supreme Court's decision in United States v. Windsor, striking down a portion of the Defense of Marriage Act.
Other Effects of the New Regulations
For employee’s in a same-sex or common-law marriage, the new regulations also change an employee's right to FMLA leave for other family members, For example, an employee in a legal, same-sex or common-law marriage may take leave to care for a child of his or her spouse (his or her "stepchild"), regardless of whether the employee ever acted as a parent to that child (referred to as in loco parentis). Similarly, if an employee's parent has a legal same-sex or common-law spouse, the employee may take leave to care for his or her stepparent, regardless of whether that stepparent ever stood in the shoes of a parent toward the employee.
What Should Employers Do?
In response to this change, employers should take the following steps before March 27, 2015 to ensure that their policies and practices comply with the new regulations:
- Review any definition of the term "spouse" contained in your FMLA policies and make appropriate changes.
- Review any language in your benefit plans related to FMLA leave (such as language related to the continuation of health coverage during an FMLA leave or language in a cafeteria plan regarding the payment of benefit premiums and flexible spending account contributions during an FMLA leave).
- Ensure that those administering FMLA leave are familiar with the change in the law and adjust their practices accordingly. Remember that an employer can require proof of a legal marriage or other familial relationship, but employers cannot force a specific type of proof – a simple statement by the employee that the relationship exists will suffice (except, potentially, in circumstances where there is a reason to suspect fraud). In addition, employers should be cautious not to discriminate when requiring such proof.
- Review any ongoing leaves for which FMLA leave has been denied due to the definition of a spouse in the current regulations and consider whether the leave should be approved going forward as of March 27, 2015.