On June 20, 2014, the U.S. Department of Labor (DOL) issued a press release announcing a proposed rule extending the protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages regardless of where they live. The DOL is proposing this rule in light of the June 2013 United States v. Windsor decision, in which the Supreme Court of the United States struck down section 3 of the Defense of Marriage Act (DOMA), which limits the definition of “marriage” to opposite-sex unions and “spouse” to individuals of the opposite sex who are married for purposes of over 1,100 federal laws and regulations. The Supreme Court’s decision in Windsor left intact section 2 of DOMA, which expressly permits states to refuse to recognize same-sex marriages performed in other states.

The current definition of “spouse” under the FMLA looks to the law of the employee’s state of residence to determine if the employee is eligible for FMLA leave on the basis of his or her spouse’s medical condition. In its notice of proposed rulemaking, the DOL is proposing to move from this current “state of residence” rule to a rule based on where the marriage was entered into—commonly referred to as the “place of celebration.” The DOL’s proposed rule would change the FMLA’s definition of “spouse” so that an eligible employee in a legal same-sex marriage will be eligible to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. The newly proposed definition of spouse expressly references the inclusion of same-sex marriages and will encompass same-sex marriages entered into within the United States, as well as marriages performed abroad that could have been entered into in at least one of the states within the United States. Specifically, the DOL proposes to redefine spouse 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.

According to the DOL’s fact sheet, this definitional change would also allow same sex spouses to take qualifying exigency leave due to their same-sex spouses’ covered military leave or to take military caregiver leave for their same-sex spouse who is a covered servicemember. The proposed change would also entitle an eligible employee to take FMLA leave to care for a stepchild (e.g., the child of the employee’s same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met.

The DOL’s move to redefine “spouse” was expected since immediately following the Windsor decision, the DOL announced it would take steps to “affirm the availability of spousal leave based on same-sex marriages” and immediately began taking steps to comport with the Supreme Court’s decision. The comment period on the proposed rule has not been set, so it is difficult to anticipate when a rule may be finalized. When the rule becomes law, however, the clarity brought by the revised rule will undoubtedly help employers—especially employers with multi-state and national operations—bring clarity to their policies and procedures not just with the FMLA, but also other impacted benefits, such as state or locally afforded leave and benefits plans. Employers should keep an eye on these developments so that they can revise and deploy internal policies and procedures immediately upon finalization of these changes.


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