On February 25, 2015, the Department of Labor (“DOL”) issued a final rule updating the regulations under the Family Medical Leave Act (“FMLA”) to address the treatment of same-sex spouses. Prior to the issuance of the final rule, the definition of “spouse” under the FMLA regulations used a “residence state” definition of spouse. Thus, the regulations did not recognize a same-sex spouse as a spouse for purposes of FMLA leave and benefits if the employee lived in a state where the couple’s same-sex marriage was not recognized. For example, an employee who married a same-sex spouse in Iowa but then moved to Texas would not be eligible for FMLA leave to care for that spouse.

In issuing this final rule, the DOL replaced the “residence state” approach with the “celebration state” approach adopted by the Internal Revenue Service (“IRS”) and most other federal agencies in the wake of the Supreme Court’s 2013 decision in United States v. Windsor.

Under this “celebration state” approach, a same-sex spouse will be considered a spouse for purposes of FMLA if the couple was legally married in a state that recognized the marriage, regardless of whether the couple lives in a state that recognizes the marriage.

Additionally, the updated definition explicitly includes common law marriage within this “celebration state” approach (consistent with the position of the IRS). If an employee entered into a common law marriage in a state that recognized common law marriages, then that employee’s common law husband or wife is considered a spouse for FMLA purposes even if the employee moves to a state that does not recognize common law marriage.

Marriages entered into outside the United States are considered valid for FMLA purposes if the marriage could have been entered into in at least one state.

This final rule becomes effective March 27, 2015. Employers should review their FMLA policies and update as necessary to comply with the final rule’s treatment of same-sex, common law, and foreign marriages.