US DOL Final Rule Defines “Spouse” to Include All Married Same-sex Couples

Today the U.S. Department of Labor issued a Final Rule extending the Family and Medical Leave Act’s (FMLA) protections to married same-sex couples regardless of whether the state they live in recognizes their union. This rule will ensure that spouses in same-sex marriages have the same ability as all spouses to fully exercise their FMLA rights.

Basic Entitlement

FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave to care for a covered family member who has a serious health condition; up to 12 workweeks of exigency leave related to the foreign deployment of a family servicemember; and up to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness.

Final Rule Definition of “Spouse”

Today’s Final Rule today revises the regulatory definition of “spouse” so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. Under the former rule eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognizes same-sex marriages.

The Final Rule replaces the “state of residence” rule with a “place of celebration” rule for the definition of spouse. The definition of “spouse” looks to the law of the place in which the marriage was entered into, rather than the law of the state in which the employee resides. In other words, even if you have employees working where same-sex marriage is not recognized, those employees’ spouses would trigger FMLA coverage if the employee was married in one of the 32 states (or the District of Columbia) that allow gay marriage.

This definitional change means that eligible employees will be able to take FMLA leave to care for their lawful same-sex spouse, stepchild (child of employee’s same-sex spouse), and stepparent who is a same-sex spouse of the employee’s parent.

The Final Rule published today will take effect on March 27, 2015.

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