The Family and Medical Leave Act (FMLA) governs the terms and circumstances under which employees of certain employers may take unpaid, job-protected leave. Effective March 27, 2015, the Department of Labor (DOL) has changed the FMLA's definition of the term "spouse" to more broadly encompass employees in families with same-sex spouses.

Prior to the new amendment, a same-sex spouse was considered a "spouse" for FMLA purposes only if the employee seeking to take FMLA leave resided in a state that recognized same-sex marriage. Pursuant to the new rule, however, the FMLA will look instead to the "place of celebration." Specifically, under the new rule, a same-sex spouse will be considered a "spouse" for FMLA purposes if the marriage was valid where and when it was entered into, i.e., "celebrated." This new rule is consistent with the definition of "spouse" adopted by the DOL under the Employee Retirement Income Security Act (ERISA), and by other federal agencies, including the Internal Revenue Service and the Department of Defense.

Under the new rule, eligible employees in qualifying same-sex relationships will be entitled to take FMLA leave under the following circumstances:

  • To care for a same-sex spouse suffering from a serious health condition;
  • For a qualifying exigency occasioned by a same-sex spouse's military service;
  • To take military caregiver leave to care for a same-sex spouse;
  • To care for the child of a same-sex spouse; and
  • To care for the parent of a same-sex spouse.

In addition to adopting the "place of celebration" rule, the DOL's new rule also expressly includes in the definition of "spouse" those individuals in legally recognized same-sex marriages, common law marriages, and marriages that were validly entered into outside of the United States, as long as they could have been entered into in at least one state of the United States.

The new rule does not, however, change employers' ability to require employees who take FMLA leave to provide reasonable documentation confirming the existence of a familial relationship, including a copy of a marriage license or a court document, or a simple statement asserting that the requisite familial relationship exists.

To facilitate going-forward compliance, employers should consider a range of measures, including reviewing and updating their employee handbooks and family medical leave policies to ensure that they reflect the new regulatory definition of "spouse" and the "place of celebration" rule, in addition to complying with state and local laws which may provide even greater leave rights for employees in same-sex relationships.