The U.S. Department of Labor’s (DOL) new rule broadening the definition “spouse” under the Family and Medical Leave Act (FMLA) to provide legally married same-sex couples the same rights under the law as married opposite-sex couples becomes effective on March 27, 2015. The DOL issued the final rule last month. The revised definition harmonizes the FMLA regulations with the United States Supreme Court’s 2013 decision, United States v. Windsor, which held unconstitutional the core provision of the federal Defense of Marriage Act.
DOL’s prior rule took a “state of residence” approach to defining same-sex spouses. Under the old approach, employers looked to the employee’s state of residence to determine whether to regard a same-sex spouse as a “spouse” for FMLA purposes. If the state of residence did not recognize same-sex marriage, the employer was not required to regard that same-sex spouse as a “spouse” for FMLA purposes. The new rule adopts a “place of celebration” approach. Under the new approach, employers must evaluate the law of the state where the same-sex marriage occurred, without regard to the law of the state of residence. As summarized by the DOL, the “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.” See DOL factsheet. FMLA-covered employers should update their leave policies, procedures, and benefit plans, and provide training to supervisors on compliance with the new protections, to ensure compliance with this rule change.
The DOL’s rule change means that legally-married same sex couples are now entitled to the same protections for caregiver leave, exigency leave, and military caregiver leave as opposite-sex couples enjoy.