The Labor Department’s fall regulatory agenda, issued November 26, 2013, promised the Wage and Hour Division would be slated to issue a proposal to revise the definition of “spouse” under the Family and Medical Leave Act (FMLA) in March 2014, in light of the Supreme Court striking down Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor.
Under the FMLA, eligible employees may take leave to care for a spouse who has a serious health condition, among other reasons. According to a DOL FMLA Fact Sheet issued by the DOL in August of 2013, “spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where employee resides, including ‘common law’ marriage and same-sex marriage.” While Windsordoes not require states to recognize same-sex marriage in other states, the IRS and DOL have already adopted a “state of celebration” rule, meaning that same-sex marriages that were validly entered into in a jurisdiction whose laws authorize the marriage of two individuals of the same sex will be recognized, even if the couple resides in a jurisdiction that does not recognize the validity of same-sex marriages. Currently, 14 states and the District of Columbia recognize same-sex marriage.
While we continue to await the issuance of these revisions, employers should be on the look-out for and review their leave policies and forms to ensure compliance with the new definition.