As anticipated, the Department of Labor (DOL) issued a new rule this month revising the definition of "spouse" for purposes of the Family and Medical Leave Act (FMLA). The new rule allows eligible employees in legal same-sex and common law marriages to take FMLA-protected leave to care for their spouse or family member, regardless of where they live.

The new rule takes effect March 27, 2015.

The Legal Explanation

Previously, the regulatory definition of "spouse" did not include same-sex spouses if an employee resided in a state that did not recognize the employee's same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This "place of celebration" provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

An Example

If an Ohio employee travels to Pennsylvania and gets married to a same-sex partner, the marriage will be considered legal upon their return to Ohio for purposes of the FMLA (even though Ohio does not recognize same-sex unions) because the marriage is legal in Pennsylvania.

In this example, the employee will be entitled to FMLA leave for a serious health condition of their same-sex spouse. Likewise, the employee will be entitled to FMLA leave to care for their spouse's child by virtue of being a stepparent (even if they do not stand in loco parentis).

What You Should Do

  • Review FMLA policies and forms, and update them if necessary.
  • Train HR personnel, leave administrators and supervisors on the new rule.
  • Think about how you'll treat the new class of spouses to stay out of legal trouble. For example, will you require proof of the legitimacy of the same-sex union? Do you require proof for other couples?