Department of Labor Amends Definition of “Spouse” in FMLA Regulations

by on March 4, 2015

posted in Employee Benefits, Family and Medical Leave,

On February 25, 2015, the Department of Labor issued a “Final Rule” that amends the definition of “Spouse” in the Family Medical Leave Act.  Previously, an employee seeking leave under the act would be eligible if the state law they lived in covered the dependent under the State’s definition of “spouse”.

The new rule requires that all legally married couples, whether same-sex, opposite sex, or married at common law be recognized as spouses for purposes of the FMLA so long as (a) their marriage was legal when, and in, the place in which it occurred; and (b) such a marriage is recognized as valid in at least one U.S. State.  This replaces the former rule based on the laws of the “State of Residence” with the new rule based on the laws of the “Place of Celebration.”

This new definition includes same-sex and common law marriages or other forms of legal marriage that are entered into in foreign countries as long as that marriage can be or could legally have been entered into in at least one state.

All features of the FMLA law apply, including time allowed for birth of a child, bonding with a newborn, placement for adoption, bonding with an adopted child, and care for the spouse themselves.  Military Caregiver Leave and Qualifying Exigency Leaves are also included.  Certain individuals who previously had been determined as eligible to take leave under the FMLA as a result of standing in loco parentis, would no longer have to meet that requirement to obtain leave and instead of needing to show that they provide day-to-day care or financial support are now eligible based on the spousal relationship.

The new rule is scheduled to take effect on March 27, 2015 and follows the executive direction to cabinet to review and implement the 2013 Supreme Court decision in United States v. Windsor that struck down portions of the Defense of Marriage Act.

Employers should be certain to ensure that their FMLA policies are updated to reflect the new approach to defining “spouses” based on the location and laws of the place the marriage was entered into if such marriage is legal in any U.S. State.  It also means that some employees previously not recognized as spouses, and not eligible to be recognized by way of registration as “domestic partners” will become covered under the FMLA.  This will provide coverage even if they are not recognized in California under the California Family Rights Act (such as unmarried opposite-sex couples who are both below the age of 62 but became married by common-law in a foreign location or state that allows common law marriage.)


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