The Department of Labor (DOL) will soon publish a Notice of Proposed Rulemaking regarding the definition of "spouse" under the Family and Medical Leave Act (FMLA). The new rule will enlarge the definition of spouse and likely simplify administration for employers.
In August 2013, the DOL issued a fact sheet that defined spouse as "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 current definition is referred to as the "state of residence" rule and means that if a same-sex couple were married in a state that authorizes same-sex marriages, but were to reside in a state that does not recognize same-sex marriages, then the couple would not be deemed "spouses" for FMLA purposes. If the couple were to relocate to a third state that did recognize their same-sex marriage, then they would become "spouses" under FMLA. In other words, DOL's current interpretation of FMLA allows whether a person qualifies as a spouse to shift depending on his or her current state of residence.
The proposed rule, also known as a "state of celebration" rule, would redefine spouse as "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 or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State." The definition specifically provides that it "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."
Although the new definition is more cumbersome, the new rule will be simpler to administer. Under the new rule, if people are recognized as spouses in the place in which they married, then they will be recognized as spouses under FMLA, regardless of the law of the state in which they subsequently reside.
When the Notice of Proposed Rulemaking is published in the Federal Register, it will specify the dates for the public comment period. During the comment period, interested parties may submit written comments at www.regulations.gov. After receiving public comment on the proposed rule, the DOL will decide whether to adopt the rule.