eTrends - Proposed Rule Would Revise FMLA’s Definition of “Spouse”


The United States Department of Labor (“DOL”) has proposed a rule to revise the definition of “spouse” under the Family and Medical Leave Act of 1993 (“FMLA”) to afford same-sex married couples the same rights as heterosexual married couples with regard to protected family and medical leave.  The proposed rule is in response to the United States Supreme Court’s decision in the case of United States v. Windsor, in which, as the DOL explained in its June 23, 2014 press release, the Court “invalidated the 1996 Defense of Marriage Act’s exclusion of state-sanctioned, same-sex marriage from the federal definition of marriage.”

Under the FMLA, an eligible employee of a covered employer may take up to 12 weeks of unpaid leave for, among other things, time needed to care for the employee’s spouse who has a serious health condition.   Currently the FMLA defines an employee’s spouse as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.”   Under the proposed rule, the DOL would move from a “state of residence rule” to a “state of celebration” rule, recognizing a marriage if it was validly entered into in a state whose laws authorize the marriage.   The proposed definition of “spouse” also explicitly references same-sex marriage. 

If the proposed rule is adopted, “spouse” would be defined as “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 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 at least one state.”  In the DOL’s June 23, 2014 press release, Secretary of Labor Thomas Perez is quoted as saying, “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

Currently, at least 19 states and the District of Columbia allow same-sex marriages.  Given the ever-changing legal landscape regarding the validity of same-sex marriages, the rights and protections afforded to employees may continue to expand.  Employers should keep abreast of any such expansion of employee rights and protections. 

More information regarding the proposed rule can be found at the U.S. Department of Labor’s website.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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