Recognition of a spouse for purposes of the Family and Medical Leave Act (FMLA) will no longer depend on the law of the state in which the employee resides. Effective March 27, 2015, the FMLA definition of spouse instead will look to the law of the place where the marriage was entered into. This “place of celebration” rule means that any couple who was legally married under the law where the marriage took place will be recognized as spouses under the FMLA, including same-sex and common law marriages.

Effect on FMLA-Qualifying Leave

The amended definition of spouse does not offer eligible employees any additional FMLA leave – leave is still capped at 12 workweeks in a 12-month period for all FMLA-qualifying reasons except for military caregiver leave, which is capped at 26 workweeks of leave. The new definition does, however, extend FMLA leave to employees with a same-sex or common law spouse, regardless of the state in which they live. Eligible employees will be entitled to request FMLA leave to:

  • take care of their lawfully married same-sex or common law spouse with a serious health condition;
  • take care of a stepchild (child of their same-sex spouse) with a serious health condition (without need for the analysis of whether an in loco parentis relationship exists);
  • take care of a stepparent (same-sex spouse of the employee’s parent) with a serious health condition (without need for the analysis of whether an in loco parentis relationship exists);
  • take military caregiver leave for their lawfully married same-sex or common law spouse who is a covered servicemember or veteran with a serious injury or illness; and
  • take qualifying exigency leave related to their lawfully married same-sex or common law spouse’s military duty.

Civil Unions and Domestic Partners Not Covered

The amended definition of spouse relates only to marriages. Civil unions and domestic partners, whether same-sex or opposite sex, are not considered marriages and are not covered as a spouse under the federal FMLA. But state laws, such as Colorado’s Family Care Act, may extend FMLA rights to civil union and domestic partner relationships so be sure to check all applicable state and local laws.

Change Allows for More Uniform FMLA Administration

Employers no longer need to determine if the state law in which an employee resides recognizes same-sex or common law marriages in order to determine if the employee is entitled to take FMLA leave in relation to their same-sex or common law spouse. Same-sex marriages essentially should be treated similarly to opposite-sex marriages, recognizing the spouse for FMLA purposes as long as the marriage was legal when entered into. This includes recognizing a husband or wife in a marriage that was validly performed in a foreign country so long as at least one U.S. state would allow such marriage. Employers may continue to request reasonable documentation to confirm the covered relationship but it is up to the employee to choose which documentation to provide, such as a marriage license, court document or even a simple written statement asserting that the relationship exists.

Update Your FMLA Policies and Practices Now

Time is short to get your FMLA policy, procedures and forms updated before the March 27, 2015 effective date of this change. If your company employs workers in multiple states or in states in which same-sex marriages are not recognized, you need to be prepared to extend FMLA leave to eligible employees for all legal spouses. Train your managers, supervisors, human resources and payroll personnel to ensure they understand this change and are prepared to administer FMLA leave requests without interference or retaliation.