On February 25, 2015, the Department of Labor (DOL) published a Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (FMLA) and expanding it to include all legally-married individuals, including those in common law and same-sex marriages, regardless of whether their state of residence recognizes such unions. The Final Rule becomes effective on March 27, 2015.

The FMLA and the Current Definition of “Spouse”

The FMLA provides eligible employees with up to 12 weeks of job-protected, unpaid leave in a 12-month period. Employees are eligible if they have worked for at least 12 months and performed at least 1,250 service hours during the 12 months immediately preceding the leave, and work at a facility within 75 miles of 50 or more employees. FMLA leave is available for the following events:

  • the care of the employee’s newborn child;
  • the adoption or foster care placement of a child with the employee;
  • the care of the employee’s spouse, child, or parent with a serious health condition;
  • the employee’s own serious health condition; and
  • any “qualifying exigency” arising from the active duty military service of the employee’s spouse, child, or parent.

In addition, an employee may take up to 26 weeks in a 12-month period to care for a covered servicemember’s serious injury or illness if the employee is the servicemember’s spouse, child, parent, or next of kin.

FMLA leave may be taken continuously or, in certain circumstances, intermittently or on a reduced schedule. The employer must maintain any preexisting group health plan coverage while the employee is on FMLA leave.

Until 2013, Section 3 of the 1996 Defense of Marriage Act (DOMA) defined “marriage” for the purposes of federal law, including the FMLA, as “only a legal union between one man and one woman as husband and wife.” It similarly restricted the definition of “spouse” to refer “only to a person of the opposite sex who is a husband or a wife.” On June 26, 2013, the Supreme Court held in United States v. Windsor, 133 S. Ct. 2675 (2013), that Section 3 of DOMA violated the Fifth Amendment’s guarantee of equal protection for same-sex couples who were legally married under state law, and was therefore unconstitutional. As a result of the Windsor ruling, the DOL was no longer prohibited from recognizing a same-sex spouse as a covered family member for FMLA leave purposes. The DOL subsequently advised that the definition of “spouse” extended to same-sex married couples living in states that recognized their marriages.

The Final Rule and the New Definition of “Spouse”

The February 2015 Final Rule still states that the term “spouse” as defined in the statute “means a husband or wife.” However, the Final Rule makes three very significant revisions to the current definition that make clear that “husband or wife” includes all legally-married individuals, whether opposite-sex, same-sex, or married under common law.

First, the Final Rule changes how the DOL determines whether a marriage is valid and therefore whether the individuals are “spouses.” Since Windsor, the DOL has used a “state of residence” rule -- that is, a couple is married if the couple lives in a state that recognizes the marriage as valid. In contrast, the Final Rule now uses a “place of celebration” rule, which looks to whether the marriage was legal in the jurisdiction in which it was entered.

Second, the revised definition of “spouse” explicitly includes same-sex marriages in addition to common law marriages.

Third, the revised definition of “spouse” includes same-sex marriages entered into abroad if they were valid where performed and could have been legally performed in at least one state.

These changes and the Final Rule itself make clear that the revised definition covers all spouses in legally-valid marriages, regardless of whether the regulation or the couple uses the terms “husband” or “wife.”

The Final Rule explains that these changes are intended to ensure that all legally-married couples have consistent federal leave rights no matter where they live. The revisions also bring the DOL in line with other federal agencies such as the Department of Defense and the Internal Revenue Service, which have already adopted the “place of celebration” rule. Although some commenters raised a concern that this imposes a potential burden on employers to know the marriage laws of jurisdictions beyond those in which they operate, the change also simplifies FMLA administration for multi-state employers and those with employees who move between states.

In light of this significant expansion of the FMLA’s scope, which becomes effective on March 27, 2015, employers should promptly seek guidance in revising their leave policies and administration to conform with the revised regulation. The attorneys at Day Pitney can assist in this effort. For detailed information regarding the FMLA and related state laws, please contact one of the attorneys in our practice group.