DOL Issues Proposed Rule Revising Definition of "Spouse" for FMLA Purposes

In light of last year’s U.S. Supreme Court decision in Windsor v. United States, in which the Court ruled that Section 3 of the Defense of Marriage Act (DOMA) requiring federal laws to ignore same-sex marriages that are legally entered into under an applicable state law is unconstitutional, the Department of Labor has issued a proposed rule revising the Family and Medical Leave Act (FMLA) definition of “spouse.” Under current law, eligible employees can take FMLA leave to care for a same-sex spouse only if they reside in a state that recognizes same-sex marriages. The proposed definition change would entitle same-sex married couples to FMLA leave regardless of where they live. 

Specifically, the proposal seeks to clarify the following: 

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State. 

As discussed in a fact sheet, the main changes this definition change will achieve include: 

  • Moving from a “state of residence” rule to a rule based on where the marriage was entered into (i.e., “place of celebration”). In other words, if a same-sex couple was married in a state where such marriages are legally recognized, they would be entitled to FMLA coverage even if they move to a state that does not recognize same-sex marriage. 
  • Creating a definition that “expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.” 

This proposed rule would entitle all eligible married employees to take FMLA leave to take up to 12 weeks of unpaid leave: 

  • for the birth of the employee’s child and for newborn care;
  • for the placement of a child with the employee for adoption or foster care;
  • to care for the employee’s spouse, parent, son, or daughter with a serious health condition; or
  • when the employee is unable to perform the functions of his or her job due to the employee’s own serious health condition. 

The change also entitles same-sex spouses to take advantage of military caregiver leave and qualifying exigency leave, as well as leave to care for their stepchild (child of employee’s same-sex spouse) “even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met.” 

With respect to a same-sex couple married in a foreign country, the proposed rule “encompasses a same-sex marriage entered into abroad as long as the marriage is valid in the place where it was entered into, and could have been entered into in at least one State of the United States. (i.e., in a State that authorizes same-sex marriages).”  

How will this change impact employers? As noted in a set of Frequently Asked Questions (FAQs), businesses with multi-state operations might welcome the uniformity in FMLA administration for married employees. 

In some instances, as discussed more in-depth here, there are circumstances in which a same-sex married employee may now be entitled to less leave than before.  For example, some states currently provide for same-sex spousal care leave.  In those states, an employee could take state law-provided leave to care for a same-sex spouse without exhausting federal FMLA leave.  That same employee could then use FMLA for other purposes. Similarly, a same-sex married couple working for the same employer will now have to aggregate their FMLA leave if the leave is taken “for birth of the employee's son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee's parent with a serious health condition.” 

More information on the proposal can be found here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.