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All in a Day's Work® - Insights on Labor & Employment Law

Definition of "spouse" expanded under the Family and Medical Leave Act

The Department of Labor (DOL) issued a Final Rule on February 25, 2015 revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA). The Final Rule amends the regulatory definition of “spouse” under the FMLA so that eligible employees in legal same-sex marriages (regardless of the state in which the marriage occurred) will be able to take FMLA leave to care for their spouse.

To date, the FMLA provided that “spouse” was to be defined according to the law of the state in which an employee resides (referred to the as “state of residence” rule).  The final rule will be effective March 27, 2015 and now follows the “place of celebration” rule that provides that “spouse” is defined by the state in which the individuals were married.  According to the DOL, the 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.”

Under the revised definition of “spouse,” eligible employees, regardless of their state of residence, may take leave to:

  • Care for their lawfully married same-sex spouse with a serious health condition;
  • Attend to a qualifying exigency related to the lawfully married same-sex spouse’s covered military service;
  • Provide military caregiver leave for their lawfully married same-sex spouse;
  • Care for their stepchild that is the child of their same-sex spouse, regardless of whether the employee meets the in loco parentis requirements; and
  • Care for the same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.

Wisconsin employers are already required to provide leave to employees in same-sex marriages as well as registered or unregistered domestic partnerships.  Employers should nevertheless ensure that their policies do not narrowly define “spouse” in such a way that excludes marriages celebrated in other states.

The DOL has issued helpful frequently asked questions that can be accessed here.

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