Effective March 27, 2015, the regulatory definition of “spouse” under the Family and Medical Leave Act (FMLA) will cover same-sex married couples, ensuring that these couples receive the rights and protections afforded under the FMLA in any jurisdiction of the United States in which they reside. This definition applies in jurisdictions, like Puerto Rico, where same-sex marriages are not recognized. 

Current FMLA regulations provided that whether or not an employee had a spouse was to be determined by the law of the state where the employee resided. Under this so-called “place of residence” rule, same-sex married employees were not permitted to take FMLA leave to take care of their spouse if their state of residence did not recognize same-sex marriage. 

The new regulations issued by the U.S. Department of Labor (DOL) utilize the “place of celebration” rule for purposes of determining if an employee is covered under the FMLA. This means that the definition of “spouse” now looks to whether a couple was legally married in any U.S. jurisdiction or country, regardless of whether or not the employee’s place of residence recognizes same sex-marriage. Now, all employees who are legally married (provided they are otherwise eligible under the FMLA) may benefit from taking unpaid, job-protected leave for family, medical or military reasons related to their spouse, as provided under the FMLA. The Rule does not extend to domestic partners, but only to legally married couples. 

Even though Puerto Rico does not recognize same-sex marriage, employers in Puerto Rico need to be aware of the fact that the new definition of “spouse” may affect their employees’ rights under the FMLA. Same-sex couples that are legally married in another jurisdiction and reside in Puerto Rico may now take advantage of the benefits provided under the FMLA. Accordingly, employers in Puerto Rico should revise their FMLA policies to incorporate the correct definition of “spouse” to ensure compliance with the new DOL regulations. Employers should also provide appropriate training for management and Human Resources personnel regarding the new regulations and notify their employees of the new rights afforded to them.