Executive Summary:  Effective March 27, 2015, the Family and Medical Leave Act (FMLA) is revised to define a "spouse" to include married, same-sex partners regardless of the state in which they reside.  This change gives same-sex couples the same FMLA rights and protections as heterosexual couples. 

Background

In 1996, the Defense of Marriage Act (DOMA) was enacted.  This Act codified the federal definition of marriage to be a union between one man and one woman, and allowed states not to recognize same-sex marriages performed in other states.

Under the FMLA's previous definition of "spouse," and in keeping with DOMA, whether or not an employee had a spouse was defined by the law of the state where the employee resided (the "place of residence" rule).  Thus, even if a same-sex couple was married under the laws of a different state, if the same-sex couple resided in a state that did not recognize same-sex marriages, that employee was not afforded FMLA leave to care for his/her spouse.

In 2013, the Supreme Court declared DOMA to be unconstitutional in United States v. Windsor.  In response to the Supreme Court's ruling, the Department of Labor (DOL) engaged in the rule making process and ultimately issued a Final Rule revising the FMLA's definition of "spouse" to ensure that same-sex married couples receive FMLA rights and protections without regard to where they reside. 

Specifically, the DOL's Final Rule adopts a "place of celebration" rule – meaning that when defining a spouse under the FMLA, husband or wife now refers "to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State."

This new definition does not include unmarried, domestic partners (including domestic partners who have entered into a civil union). 

The Final Rule has been temporarily enjoined by Judge O'Connor from the U.S. District Court for the Northern District of Texas, Texas v. United States of America,No. 7:15-cv-00056 (N.D. Texas 2015).  Specifically, Judge O'Connor granted a request made by the states of Texas, Arkansas, Louisiana and Nebraska for a preliminary injunction and temporarily halted the "state of celebration" rule in those four states. 

Employers' Bottom Line

The bottom line is that employers outside of Texas, Arkansas, Louisiana and Nebraska should review their current FMLA policy to ensure that it encompasses allmarried couples.  Additionally, employers should ensure that their supervisors and managers are informed of this new definition and its impact on employees. 

Employers doing business in Texas, Arkansas, Louisiana and Nebraska should monitor the developments in Texas v. United States of America to determine if, and when, the new definition of spouse under the FMLA will be implemented in those states.