On February 23, 2015, the U.S. Department of Labor announced a rule change to be issued February 25, 2015 that ensures that all eligible employees in same-sex marriages will enjoy the same rights and protections under the Family Medical Leave Act (“FMLA”) as employees in opposite-sex marriages.

FMLA Spousal Protections

Generally, the FMLA provides eligible employees with unpaid time off from work for certain family, medical and military events, including time needed to care for a qualifying family member such as the employee’s spouse.

For example, eligible employees may take FMLA leave:

  • To care for a spouse who has a serious health condition;
  • To care for a spouse who is a covered servicemember with a serious illness or injury; or
  • For a qualifying exigency related to the covered military service of the employee’s spouse.

Prior Definition of Spouse

Previously, the FMLA regulations defined spouse based upon the law of the state where the employee resided. An employee in a same-sex marriage could qualify for spousal-related leave under the FMLA only if the couple resided in a state which recognized their marriage as legal.

Revised Definition of Spouse

Under the recently announced rule, the regulations are revised to define spouse based upon the law where the marriage was entered into (the “place of celebration”) rather than the law in the state the employee resides. The Department of Labor explains in the Final Rule that this change will “ensure that all legally married couples, whether opposite-sex or same sex, will have consistent federal family leave rights regardless of where they live.”

Under the new rule, the definition of spouse expressly includes an individual in a same-sex or common law marriage if:

  • The marriage was entered into in a state that recognizes such marriages; or
  • The marriage is valid in the place where entered into and could have been entered into in at least one state.

The new rule is scheduled to take effect March 27, 2015.

Impact on Employers

The rule change has considerable impact for employers in Michigan, one of the remaining twelve states that continues to ban same-sex marriages. The state law bans in Michigan, Ohio, Kentucky and Tennessee are currently pending review before the United States Supreme Court. DeBoer v. Snyder, No. 14-571, 2015 WL 213650 (S. Ct. Jan. 16, 2015).

Additional Information

The text of the Final Rule may be found here.

The Department of Labor Fact Sheet summarizing the new Rule may be found here.