On February 23, 2015, the U.S. Department of Labor (DOL) issued a Final Rule updating the Family Medical Leave Act's (FMLA) regulatory definition of "spouse" to include same-sex couples. Previously, the definition of "spouse" did not include same-sex spouses if the employee resided in a state that did not recognize his or her same-sex marriage. Now, eligibility for FMLA protections shall be based on the "place of celebration," or the location where the individual was married. This means that a couple married in Illinois, a state that recognizes same-sex marriage, would be entitled to spousal FMLA leave even if they later reside in a state that does not recognize the union.

The DOL maintains that the Final Rule will reduce the administrative burden on employers that operate in more than one state and remove barriers to the mobility of employees in same-sex marriages. Some other features of the DOL’s Final Rule include:

  • An employee in a legal same-sex marriage may take FMLA leave to care for his or her stepchild.
  • An employee may take FMLA leave to care for a stepparent who is the employee’s parent’s same-sex spouse.
  • An employee in a common law marriage is eligible for FMLA leave to care for his or her spouse as long as the common law marriage became valid in a state that recognizes common law marriage.
  • The new rule recognizes same-sex marriages entered into abroad as long as the marriage is valid in the place it was entered into.

Employers should carefully review and, where necessary, revise their FMLA leave policies to ensure they reflect the new FMLA entitlements of employees in same-sex marriages. Additionally, those individuals charged with administration of their employer's leave program should be informed (and, ideally, trained) regarding the new rights and obligations created as a result of the issuance of this Final Rule.