In another effort to remedy the chaos caused by the U.S. Supreme Court’s overturn of the DOMA in June of 2013, the Department of Labor (DOL) has issued its final rule defining who is a “spouse” for purposes of the federal Family and Medical Leave Act (FMLA).

The final rule will go into effect on March 27, 2015 and states that as of that date “spouse” will be defined using the “site of celebration or marriage” rather than the “site of domicile or residency” rule. What this means is that as of March 27 all lawfully married couples will be recognized for purposes of qualifying for FMLA leave to care for one another based on where they were married-or the “site of celebration or marriage”-rather than based on where they currently live.

The “site of celebration” rule already has been adopted by the IRS and the DOL, respectively, for purposes of tax filing and ERISA-qualifying benefits. (Please see our September 24 and December 3, 2013 alerts for more information on these previous rules.) So, most observers were anticipating that the DOL would do likewise regarding the FMLA.

The primary effect of the new rule is that employers with operations in states where same-sex marriage is not recognized now will be required to provide FMLA leave to same-sex spouses to care for one another in those states, as long as those same-sex spouses were lawfully married in another state or foreign jurisdiction where same-sex marriage was legal at the time of their marriage.

Previously, same-sex couples who lived in states where same-sex marriage was not legal were not permitted to care for each other using FMLA leave because the (now amended) FMLA regulation defining “spouse” defined it based on “how it is defined under state law in the state in which the employee resides.” So, same-sex spouses’ FMLA rights were governed by where they currently lived rather than where they were married. Many employers chose to provide leave to same-sex spouses anyway despite the former “residency or domicile” rule. However, technically, if those spouses had needed to use FMLA leave for a purpose which was truly covered by the FMLA, they could have taken another 12 weeks of FMLA leave, because the “same-sex partner leave” their employer had chosen to give them in order to give their marriage the same status as those recognized by state law was not actually “FMLA” leave, since these same-sex marriages were not recognized by the laws of the states in which the same-sex partners resided. So, technically, under the former rule, it was possible for same-sex couples to be able to use more leave than heterosexual couples; as heterosexual couples’ leave to care for one another would have counted as “true FMLA leave”, such that once they used their 12 weeks caring for each other they could not have used it for another FMLA-qualifying purpose within the same 12-month period as a same-sex couple could.

Under the new rule, same-sex couples now will be bound by the same “you only get 12 weeks of FMLA leave each 12 months no matter how many FMLA-qualifying events arise during that period” limitation as heterosexual couples are, since leave taken to care for each other now will count as “true FMLA leave” just as it has in the past for heterosexual couples.

A few ramifications of this new rule which may not be as obvious are:

• Same-sex couples will not have to use the in loco parentis doctrine to care for children of their same-sex spouse who are not biologically theirs; as they now will qualify as the “step-parent” of such children, since their marriage now is recognized no matter where they live under the FMLA. (Step-parents have always qualified as “parents” under the FMLA).
• Similarly, a child of a same-sex couple will no longer have to establish that he/she was cared for by the same-sex spouse of his/her biological parent when he/she was a child under the in loco parentis doctrine in order to be able to care for that person, as, again here, the same-sex spouse of the employee’s biological parent now will qualify as his/her “step-parent.”
• Same-sex spouses also will now have to “share” FMLA leave in certain circumstances (e.g., to care for a newborn, newly adopted or placed foster child, a parent, or for an injured servicemember or veteran) just as heterosexual spouses do.
• The new final rule also recognizes spouses of common law marriages based on the state in which they were entered into rather than based on the state in which the employees now live.
• Employers are permitted to request documentation certifying the validity of a same-sex or common law marriage the same as a heterosexual one (or any other relationship which forms the basis of an employee’s request for FMLA leave for that matter). This documentation can consist of a “simple statement from the employee asserting the requisite relationship.”

In closing, please note that this final rule does not change the status of civil unions. Partners in a civil union still do not qualify as “spouses” for purposes of taking FMLA leave to care for one another. (They can still use FMLA leave to care for a child who lives with them or that they otherwise care or provide financial support for under the in loco parentis doctrine, however.)