The Department of Labor (DOL) issued a Final Rule, effective March 27, 2015, which revised the definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA). The new definition “includes an individual in a same-sex or common law marriage that either: (1) was entered into in a State that recognizes such marriages; or (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State,” i.e., the “place of celebration rule.” 79 F.R. 36448. Thus, the revision expands the availability of FMLA leave to legally married same-sex spouses, regardless of the state in which the spouse resides. In contrast, the previous definition of “spouse” afforded FMLA leave to legally married same-sex spouses only where the marriage was recognized in the current place of residence. This revision does not increase the number of covered employees; instead, previously covered employees are now permitted to take leave for a same-sex spouse, regardless of their state of residence, in addition to leave: for the birth of the employee’s son or daughter and to care for the newborn child; for the placement of a son or daughter with the employee for adoption or foster care; to care for the employee’s parent, son or daughter with a serious health condition; when the employee is unable to work due to the employee’s own serious health condition; or for any qualifying exigency arising out of the fact that the employee’s son, daughter, or parent is a military member on covered active duty. 29 U.S.C. 2612.
The Bottom Line. While this revision does not increase the number of covered employees, it does provide FMLA spousal leave to eligible employees who are in legal same-sex marriages, regardless of their residency. Accordingly, employers are strongly encouraged to review and update their handbooks and policies to reflect this change in FMLA leave.