The United States Department of Labor (DOL) announced that on February 25, 2015, it will issue a Final Rule revising the regulations to the Family and Medical Leave Act (FMLA) to provide that the term "spouse" means a husband or wife and "refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into … ." 29 C.F.R. § 825.102. Stated differently, the FMLA now employs a "place of celebration" rule in defining the term "spouse," as opposed to the former state of residence rule. This change will ensure that all legally married employees have consistent FMLA leave rights, regardless of where they live. The Final Rule takes effect on March 27, 2015—30 days after publication in the Federal Register.

Following the United States Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675 (2013), which rendered unconstitutional Section 3 of the Defense of Marriage Act's definition of marriage under federal law as the union of a man and woman, President Obama directed all departments to review relevant federal statutes to implement the Windsor decision. The DOL reacted to Windsor by revising its guidance fact sheet and field operations handbook to provide that for purposes of taking FMLA leave to care for a spouse, the term "spouse" would be interpreted to mean a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including "common law" marriage and same-sex marriage. This interim guidance was consistent with the then-current definitional framework of "spouse," which looked to the law of the state of residence of the employee and highlighted that eligible employees could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriages.

On June 27, 2014, the DOL issued a Notice of Proposed Rulemaking to begin the process of revising the definition of "spouse" to adopt the "place of celebration rule." This rule, the DOL suggested, would create consistency in the interpretation of spouse for all legally married individuals, regardless of where the employee lives. Following a notice and comment period, the DOL has now announced that it will issue the Final Rule implementing the place of celebration rule.

Notably, the revised definition of spouse specifically acknowledges and recognizes that a spouse is an individual "in a same-sex or common law marriage" and, with respect to opposite-sex, same-sex and common law marriages, will also encompass relationships where the marriage has been entered outside of the United States, as long as it is valid in that other jurisdiction and could have been lawfully entered into in at least one state in the United States.

As a direct result of these changes, eligible employees, regardless of where they live, will be able to:

  • take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition,
  • take qualifying exigency leave due to their lawfully married same-sex spouse's covered military service or
  • take military caregiver leave for their lawfully married same-sex spouse.

Additionally, while the regulatory changes do not alter the circumstances under which an employee may currently take leave to care for a child of an employee's same-sex partner (irrespective of marriage) when the employee meets the in loco parentis standard, now an employee in a legal same-sex or common law marriage may also take leave for his or her stepchild (child of employee's same-sex spouse) or step-parent (the employee's parent's same-sex spouse), regardless of the existence of the in loco parentis relationship.

In response to the Final Rule, employers should review their employee handbooks and separate FMLA policy materials to ensure that they reflect an updated definition of spouse and the utilization of the place of celebration rule. Additionally, when evaluating employee requests for FMLA leave to care for a spouse or child, employers should review the law of the state or country in which the marriage occurs to ensure that the appropriate and more expanded definition of such relationship is being utilized. Consistent with current FMLA regulations, an employer may continue to ask an employee to provide reasonable documentation to confirm the family relationship, which may include legal documentation or a simple statement by the employee confirming the existence of the family relationship. Employers who have employees working in a state with its own, similar family and medical leave may also need to review the state leave law to determine if the family leave request is also covered by and should be counted against any state leave entitlement.