The Department of Labor’s (DOL’s)Wage and Hour Division issued a Final Rule on February 25, 2015, revising the federal regulations defining “spouse” under the Family and Medical Leave Act (FMLA) to include all legally married spouses. This change means that employees in legal, same-sex marriages now have the same rights as employees in opposite-sex marriages to take federally protected leave under the FMLA to care for a spouse with a serious health condition, to take qualifying exigency leave due to a spouse’s covered military service and/or to take military caregiver leave for a spouse, regardless of where they reside. Previously, the DOL’s regulatory definition of “spouse” used the “state of residence” test, in which same-sex spouses were not entitled to FMLA leave if the employee resided in a state that did not recognize the employee's same-sex marriage. The new rule abolishes this “state of residence” test and adopts the “place of celebration test” already used by the IRS and other federal agencies, in which FMLA eligibility is based on the law of the place where the marriage was entered into. This "place of celebration" test allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

The agency’s rule change comes in light of the Supreme Court’s decision in United States v. Windsor, 132 S. Ct. 2675 (2013). In Windsor, the Court struck down as unconstitutional section 3 of the Defense of Marriage Act (DOMA), which interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law.

Enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. "The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one," said U.S. Secretary of Labor Thomas E. Perez in announcing the rule change. "With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else. All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families – without the threat of job loss."

In summary, employers are now required to allow FMLA leave for employees in legal same-sex marriages, provided that the employee was married in a state or country where same-sex marriage is recognized. Employers should ensure that management and human resources staff are aware of the regulatory change and that FMLA policies are in compliance with the new rule.

The Final Rule is effective March 27, 2015.