The Department of Labor (“DOL”) published its final rule on Feb. 24, 2015, relating to the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) Regulations. Beginning March 27, 2015, when the final rule becomes effective, the definition of “spouse” for purpose of FMLA leave will include eligible employees in legal same-sex marriages. Prior to this rule change, same-sex partners were only considered spouses if their marriage was recognized in the state where they lived. Under the new rule, the focus shifts to where the marriage was “celebrated.” Accordingly, if the marriage is legal under the law of the state where the marriage was performed or “celebrated,” the same-sex marriage is legal for purposes of the FMLA regardless of state law where the employee lives.
As a result of this change spouses in same-sex marriages will have the same ability as all other spouses to exercise FMLA rights. This is true regardless of whether the state in which they reside and are employed recognizes same-sex marriage. Employers considering spousal FMLA leave requests may only consider whether the marriage at issue was legal in the state where it was celebrated in determining whether an individual qualifies as a “spouse” under the FMLA.
According to the DOL, 32 states and the District of Columbia currently recognize and allow same-sex marriage. Several additional states’ marriage laws are currently under judicial review and it is expected that more states will be added to this list. Employers should review and revise their FMLA policies and practices to account for this change.