On Monday, February 23, 2015, the Department of Labor issued a new rule providing FMLA leave benefits to workers in legal, same-sex marriages, regardless of where the couple resides. Employees in same-sex marriages now have consistent federal family leave rights as those in opposite-sex marriages to take leave to care for a spouse with a serious health condition. The new rule updates the regulatory definition of “spouse” providing benefits now based on the law of the place where the same-sex marriage was entered into, regardless of whether the state in which the couple currently resides recognizes such marriages.

An employee seeking leave under the new rule may be required to provide a copy of a court document or reasonable documentation or statement asserting the family relationship, as outlined in 29 C.F.R. § 825.122(k). Employers should decide whether they are going to require documentation or not and then apply its decision uniformly to all married employees.

Employers that are covered by the FMLA should be sure to do the following:

  • Train human resource officers and supervisors to make sure they understand the impact of the final rule and the expanded benefits;
  • Update FMLA policies, procedures, notices, and forms to include the updated definition of “spouse”;
  • Update all references to FMLA benefits found in employee handbooks; and
  • Be sure to uniformly apply all FMLA policies regardless of whether processing leave for a same-sex or opposite-sex married employee.