Becomes Effective March 27, 2015

The Department of Labor has enacted a final rule updating the regulatory definition of “spouse” under the FMLA. This rule will provide the same benefits to any employee in a legal same sex marriage, if the marriage was legal in the jurisdiction in which it was entered into--regardless of where the employee lives or whether the employee’s state of residence permits legal same sex marriages (“place of celebration” rule). Under the prior rule, FMLA protections were extended to those in same sex marriages only if the employee resided in a state where such marriages were legal.

The new rule is based on the U.S. Supreme Court’s 2013 decision in United States v. Windsor, extending the definition of “marriage” to include all marriages that are lawful in the state in which they were performed for the purpose of federal law.

Other changes:

  • The definition of “spouse” includes employees in common law marriages, so long as the marriage was validly entered into in a state that recognizes such marriages.
  • The definition of “spouse” includes those married outside of the United States, if the marriage could have been entered into in at least one state.
  • The rule also applies when determining whether an employee is eligible for leave to care for a step-parent or step-child through a same sex marriage, regardless of whether the employee and family member are in an in loco parentis relationship.
  • The rule does not extend spousal benefits to those in same-sex or opposite-sex civil unions.

In accordance with previous regulations, employers may request reasonable documentation to confirm that a family relationship exists.

The new rule is effective March 27, 2015. Employers should update their FMLA policies and ensure that FMLA administrators are aware of the rule change.

More information, including the text of the final rule and frequently asked questions, is available online.