On February 25, 2015, the U.S. Department of Labor’s Wage and Hour Division (DOL) published a final rule to revise the Family and Medical Leave Act of 1993’s (FMLA) definition of “spouse,” expanding FMLA leave to employees with same-sex spouses, regardless of where the employee resides or works. 

The DOL adopted the so-called “state of celebration” rule for determining FMLA coverage for “spouses.” The revised regulation will recognize same-sex spouses who are legally married in a state or foreign country that authorizes same-sex marriages. For example, an employee who is married in Minnesota (a state that recognizes same-sex marriage) will be entitled to FMLA benefits to care for a same-sex spouse even if she works or lives in a state that does not recognize same-sex marriage. Previously, the FMLA regulations used the “state of residence” rule, defining “spouse” as it was defined under state law for the purpose of marriage in the state where the employee resided. The revised rule will take effect on March 25, 2015.

FMLA provides employees up to 12 weeks of unpaid, job-protected leave in a 12-month period to care for a spouse with a serious health condition, among other protections. Eligible employees are also entitled to unpaid, job-protected leave to care for a stepchild. Under the revised regulation, FMLA rights will be expanded to allow employees leave to care for same-sex spouses and the children of same-sex spouses. Same-sex civil unions and domestic partnerships are not recognized under the revised regulations.

Until 2013, employees were not entitled to FMLA leave to care for same-sex spouses or the children of same-sex spouses under the Defense of Marriage Act (DOMA). DOMA, enacted in 1996, limited the interpretation of federal law such that a "spouse" meant an opposite-sex spouse only. Thus, employees were not entitled to FMLA leave to care for same-sex spouses, even if same-sex marriage was recognized by state law where the employee lived or worked. In June 2013, the Supreme Court struck down the definition of “spouse” in DOMA by its decision in United States v. Windsor. As a result of this decision, employers were left to apply the “state of residence” rule from the FMLA regulations, providing FMLA leave to employees who cared for their same-sex spouse if the employee lived in a state where same-sex marriage was recognized. 

The “state of residence” rule created complications for employers. An eligible employee who was employed in a state that did not recognize same-sex marriage, but who resided in a state that did, would be entitled to FMLA benefits to care for a same-sex spouse, even if the employer had no presence in a state which recognized same-sex marriages. In addition, employers who voluntarily provided FMLA-type leave for same-sex spouses who resided in states where same-sex marriage was not recognized risked that leave to care for a same-sex spouse would not count against the 12-week FMLA entitlement and the employee could seek an additional 12 weeks of leave for an FMLA-qualifying event (such as for the care of a child), effectively "double-dipping" on FMLA leave entitlement.

The DOL noted this revision will provide consistent federal family leave rights for legally married couples, encourage employee mobility and decrease administrative burdens for employers operating in more than one state. This definition is now also consistent with the definitions used by other federal agencies, including the Internal Revenue Service. 

Employers should review and evaluate existing policy language based on the revised regulation, and amend it as necessary to ensure same-sex spouses are appropriately addressed.