DOL changes definition of 'spouse’ under the FMLA

Employers need to be aware of a new Final Rule issued by the U.S. Department of Labor (“DOL”) changing the definition of “spouse” and allowing for more employees to qualify for leave time under the Family and Medical Leave Act (“FMLA”). The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons. The FMLA also includes certain military family leave provisions for covered employees.

On February 25, 2015, the DOL issued a Final Rule amending the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

Prior to the amendment, the term “spouse” was defined for purposes of the FMLA as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” 29 U.S.C. § 2654; 29 C.F.R. 825.122. The DOL’s new Final Rules changes the definition from a “state of residence” rule to a “place of celebration” rule for the definition of spouse. 29 CFR §§ 825.102 and 825.122(b). This means that the DOL will now look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. The DOL explained that 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.

As a result, all employers should check and amend their employee handbooks and FMLA policies to ensure that they comply with the DOL’s new Final Rule. In addition, employers should comply with the new Final Rule when deciding whether a particular request for leave under the FMLA is qualified leave or not. The effective date for the final rule is March 27, 2015.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.