Same-Sex Couples Now Receive Equal Coverage Under The FMLA

by Genova Burns LLC

[co-author: Vinny Beraldo]

On Friday, March 27, 2015, the Department of Labor (“DOL”)’s new regulation revising the definition of “spouse” to include those in same-sex marriages went into effect expanding the definition of spouse under the Family and Medical Leave Act of 1993 (“FMLA”).

With the reversal of the Defense of Marriage Act (“DOMA”) by the U.S. Supreme Court in United States v. Windsor, President Obama instructed all federal agencies to determine if federal benefits programs should be expanded as a result. Consequently, on February 25, 2015, the DOL published a Final Rule (“Final Rule”) which amended the regulatory definition of spouse under the FMLA to include all individuals in legal marriages, regardless of where they live thus ensuring that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.  Prior to the New Rule, the DOL used the “state of residence” rule, which required the employer to look to its own state’s marriage laws to determine if an employee claiming FMLA leave actually had a “spouse”.  Thus, same-sex couples who were married in a state where the union was legal, but resided in a state that does not recognize same, these individuals would not be considered spouses under the old standard.

Under the new “place of celebration” standard, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages.  The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.  Thirty-Seven (37) states currently recognize same‑sex marriage, while thirteen (13) states do not yet recognize the union.

It is important to note that the new regulatory definition of spouse does not substantively alter the FMLA.  For example, it does not change the eligibility requirements or an employee’s entitlement to take up to 12 workweeks of FMLA leave in a 12-month period, or what types of employers are covered by the FMLA.  All requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must be met.  The revised definition also expands the right of both parents to utilize FMLA leave for the birth or adoption of their child.  Under the previous language, these rights were limited to the “mother” and “father”, limiting this option to partners in a heterosexual marriage.

As expected, not all states have agreed with this change. On March 26, 2015, the United States District Court for the Northern District of Texas, granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to DOL’s Final Rule.  The Texas Attorney General, Ken Paxton, who was joined by the Attorney Generals for Nebraska, Arkansas, and Louisiana, was able to show a likelihood of prevailing on his claim that a change in the federal law’s definition of spouse would force Texas employers to choose between breaking federal or state laws.  U.S. District Judge Reed O’Connor ultimately agreed with the coalition of states in finding that the agency was exceeding its authority in changing the Final Rule.  In his opinion, Judge O’Connor stated his belief that Congress “intended to preserve a state’s ability to define marriage in this way without being obligated under the laws of another jurisdiction which may define it differently.”

Takeaway for Employers:

  • Given the injunction, a great deal of uncertainty surrounds the DOL’s Final Rule with additional court rulings expected in the coming months.  A recent posting on the DOL’s website about the decision provides no clear answers.
  • In the interim, the best approach for those employers operating in New York and New Jersey is offer FMLA benefits to employees in same-sex marriages who qualify for leave under the DOL’s new definition of spouse.
  • Continue to follow our blog and the DOL’s website for further developments.

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.

© Genova Burns LLC | Attorney Advertising

Written by:

Genova Burns LLC

Genova Burns LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.