Effective March 27, 2015, the FMLA’s definition of “spouse” will expand to include an FMLA-eligible employee in a lawful same-sex or common law marriage, even if the marriage is not recognized in the state in which the employee lives or works. This change will provide all legally married couples (opposite-sex, same-sex, or married under common law) with consistent federal leave rights throughout the country (though states may provide greater protection than federal law).

In the case of a marriage entered into outside of the United States, if the marriage is valid in the place in which it was entered, and could have been entered in at least one state in the United States, then it will be recognized for FMLA purposes.

Under the prior rule, which remains in effect until March 27, an employee could only take FMLA leave to care for a same-sex spouse if the employee resided in a state that recognized same-sex marriage.

With the change, an FMLA-eligible employee will be able to:

  • take FMLA leave to care for a lawfully married same-sex spouse with a serious health condition;
  • take qualifying exigency leave due to the lawfully married same-sex spouse’s covered military service;
  • take military caregiver leave for a lawfully married same-sex spouse;
  • take FMLA leave to care for a stepchild (child of a same-sex partner) with a serious health condition without having to demonstrate an in loco parentis relationship; and
  • take FMLA leave to care for a stepparent (same-sex spouse of the employee’s parent) with a serious health condition without having to demonstrate an in loco parentis relationship between the employee and stepparent.

Employers should consider training managers and FMLA/benefit coordinators about this change so that leave requests are not improperly denied. Employers also should review their FMLA policies, which may need to be revised if, for example, they limit the definition of “spouse” to husband and wife of the opposite sex.