The U.S. Department of Labor’s issuance of a final rule amending the definition of “spouse” in the federal Family and Medical Leave Act (“FMLA”) regulations has inspired us to prepare a new series of FMLA-related blog posts on the subject of “FMLA Rules for Couples.”
We start our discussion by asking what may not seem like the obvious question in light of the new rule: Which couples do not have FMLA rights under the new definition of spouse?
The answer is relatively straight-forward: Couples who are not legally married under U.S. laws, or whose lawful marriage outside the U.S. could not have been entered into in at least one U.S. state, are not considered “spouses” for purposes of the FMLA.
Thus, while opposite-sex couples in lawful marriages, same-sex couples in lawful marriages, and even couples married under common law all have FMLA rights as spouses, the FMLA does not provide the rights of a husband or wife to:
Individuals in a civil union; Individuals who are domestic partners; Individuals who are dating, living together, friends with benefits, etc. (i.e., not married).
Keep in mind, of course, that we are talking about the FMLA rights of spouses. The above rules do not mean, for example, that an unmarried parent (mother or father) would not be entitled to FMLA leave to bond with his or her newborn, or newly placed adoptive or foster, son or daughter (assuming the parent has a biological, legal, or in loco parentis relationship to the child). But the unmarried parent would not be entitled to FMLA leave to care for that child’s other parent.
Also, some state-law equivalents of the FMLA may have broader/different definitions and leave rights. So while the employee may not be eligible for leave under federal law, he or she may be entitled to leave under state law.
Up next: Leave Limitations when Spouses Work for the Same Employer