OnSame-sex_couple February 25, 2015 the U.S. Department of Labor issued its final rule revising the regulatory definition of spouse under the Family and Medical Leave Act (FMLA) so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This change will go into effect on March 27, 2015.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The major changes under the DOL’s to the FMLA’s definition of spouse include the following:

  • The U.S. Department of Labor (DOL) has changed its focus from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. Now, the DOL will look to the law of the place in which the marriage was entered into, instead of the law of the state in which the employee resides. According to the DOL, this “place of celebration rule” allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
  • Also, the DOL’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

Here is a link to the full text of the final rule.

The DOL’s revision was in response to the 2013 the Supreme Court’s decision striking down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional (United States v. Windsor). Specifically, this update to the FMLA now provides FMLA rights to all legally married same-sex couples consistent with the Windsor decision.

What the FMLA Update Means for Employers and Employees

For both employers and employees, it will be important to understand that leave and job protection rights available under the  FMLA now extend to all eligible employees in same-sex and common-law marriages, regardless of whether the employee’s state of residence permits same-sex or common-law marriage.

Employers should also review their FMLA policies and procedures and update them prior to the 3/27/2015 effective date to comply with the FMLA revision.

For more information about the FMLA, including complying with the newly issue revisions pertaining to same-sex couples, contact employment attorney Jason Shinn. Mr. Shinn is a Michigan licensed employment attorney.