DOL Expands FMLA's Definition of "Spouse"

Written by Jamie Lang

The U.S. Department of Labor announced that the definition of the term "spouse" under the Family and Medical Leave Act will change to include spouses of all legally married couples. The Department of Labor's Final Rule expands the definition of "spouse" by adopting a "place of celebration" rule. The FMLA's definition of "spouse" will be a husband or wife who was legally married in the location where the marriage occurred. It specifically includes individuals in same-sex and common law marriages. The change goes into effect on March 27, 2015.

The FMLA has recognized some gay marriages since June 2013, but FMLA-eligible employees in same-sex marriages could only take FMLA leave to care for a spouse if they resided in a state that recognized same sex marriages. The revised definition followed the United States Supreme Court's June 2013 decision in United States v. Windsor, which struck down part of the Defense of Marriage Act. The Defense of Marriage Act limited the definition of "marriage" under federal law to a marriage between one man and one woman as husband and wife. The definition of "spouse" was limited to a person of the opposite sex. As a result, before the Windsor decision FMLA leave based on a spousal relationship was limited to individuals in opposite-sex marriages.

After the change goes into effect, to determine if an employee is entitled to FMLA leave for the care of a spouse, employers will look to the law of the place where the employee was married. If an employee was legally married in another state or country, the employee is entitled to take FMLA leave to care for their spouse, or their spouse's children, even if the state in which they currently reside does not recognize same sex marriages.

If you have any questions about this update or the FMLA, please contact the author of this article or an attorney at Clifton Budd & DeMaria, LLP.

About the Author
Jamie Lang
Senior Associate
Jamie Lang joined the firm in February 2013. She represents and counsels employers in all aspects of labor and employment...
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