The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the Labor Department that relied upon the definition of marriage in the employee’s state of residence.

By this rule, if adopted, employers in all states would be required to provide leave to legally married same-sex spouses even if the state of the employee’s residence or the state of the employer’s business does not recognize same-sex marriage.  It is worthy to note, however, given the Supreme Court’s highly publicized decision in Windsor, that the various federal challenges to the laws of those states not recognizing same-sex marriages will be successful to erode, and ultimately to eliminate, all of the state laws and regulations that do not recognize same-sex marriages.