DOL Issues Notice of Proposed FMLA Rule that Offers Equal Leave Rights to Same-Sex Spouses

by Dorsey & Whitney LLP

On June 20, 2014, the U.S. Department of Labor (“DOL”) issued a notice of proposed rulemaking regarding the definition of “spouse” under the Family and Medical Leave Act (“FMLA”). If adopted, employees in same-sex marriages will be eligible to take all types of spouse-related leave protected under the FMLA regardless of whether the states in which they reside recognize the employees’ marriages.


The FMLA, which applies to employers with fifty or more employees, allows eligible employees to take unpaid, protected leave in a variety of circumstances. Generally, the FMLA protects employees who have worked for a covered employer for at least twelve months (and for a certain number of hours) at a site where at least 50 employees are employed either at the same site or within 75 miles.

The FMLA protects several types of leave, including parenting leave, leave for a serious health condition (the employee’s condition or the condition of a family member), military exigency leave, and military service member leave. The FMLA’s definition of the term “spouse,” as currently drafted, impacts an employee’s ability to take leave in a number of situations, including:

  • to care for a spouse with a serious health condition;
  • to care for a stepchild with a serious health condition;
  • to care for a stepparent with a serious health condition;
  • to take exigency leave for a spouse’s military service; and
  • to take military caregiver leave for a spouse.

The DOL’s proposed rule seeks to modify the definition of “spouse” to extend spouse-related leave to all legally married same-sex couples regardless of where they live. Under the FMLA’s current implementing regulations, same-sex couples are considered spouses for leave purposes only if they reside in a state that recognizes same-sex marriage.

The DOL’s Notice of Proposed Rulemaking

In June, the DOL issued a notice of proposed rulemaking regarding the FMLA’s definition of the term “spouse.” See, e.g., DOL, Wage & Hour Div., Fact Sheet: Proposed Rulemaking to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations, available here. See also DOL, Wage & Hour Div., Family and Medical Leave Act: Notice of Proposed Rulemaking to Revise the Definition of “Spouse” Under the FMLA, available here.

Since 1995, the FMLA’s definition of the term “spouse” has been linked to the law of the state in which the employee resides. The FMLA’s current regulations define the term as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides[.]” However, following the 1996 enactment of the Defense of Marriage Act (“DOMA”)—which restricted the definition of “marriage” to legal unions between a man and a woman, and “spouse” to a member of the opposite sex—the DOL issued an opinion letter indicating DOMA’s definitions applied to the FMLA. Thus, DOMA limited the availability of FMLA leave premised on the marital relationship to opposite-sex couples.

In 2013, the Supreme Court held in U.S. v. Windsor that DOMA’s Section 3 (which included the definitions of “marriage” and “spouse’) was invalid, finding the provisions unconstitutional under the Fifth Amendment. Windsor’s invalidation of DOMA triggered a return to the FMLA’s reliance on state law to govern the definition of “spouse” for eligibility purposes. As such, post-Windsor, same-sex couples residing in states that recognize same-sex marriage (like Minnesota) are eligible for FMLA spousal leave, while same-sex couples residing in states that do not (like Wisconsin) are denied the same protections.

The DOL’s proposed rule seeks to amend the term “spouse” from one premised on employee residency to one premised on the place of celebration. Under the rule, the availability of spousal leave would no longer depend on the law of the state of residency, but would instead depend on the law of the place the employee entered into his or her marriage. Thus, as long as an employee entered into a legal marriage in a state or country that recognizes same-sex marriage, he or she would be entitled to spousal leave under the FMLA.1

In operation, the proposed rule would ensure that all legally married individuals are entitled to comprehensive FMLA protection, including spousal leave, regardless of where they live. The rule would also eliminate any remaining confusion regarding eligibility in the wake of Windsor. Indeed, in light of the confusion Windsor left in its wake, many employers proactively amended their FMLA policies to extend spousal leave to all employees in same-sex marriages, irrespective of residency, to avoid the divergent results created by the current “residency rule.” Given the DOL’s pending rulemaking, more employers may be disposed to follow suit. Employers who have not yet done so should stand ready to update their policies as needed and be prepared for a potential increase in protected leave requests. All employers should stay tuned for further developments as the DOL, and the courts, continue to refine this significant area of the law.


The DOL’s proposed rule seeks to ensure that all legally married same-sex couples enjoy full access to FMLA rights. The proposed rule, now published in the Federal Register, will go through a public comment period, which ends on August 11, 2014. See id. Covered employers are encouraged to monitor the rule and prepare for timely compliance.

1   The DOL’s proposed definition provides as follows:

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.

DOL, Wage & Hour Div., Family and Medical Leave Act: Notice of Proposed Rulemaking to Revise the Definition of “Spouse” Under the FMLA, available here.


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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