The US Department of Labor (DOL) issued a notice on February 23 that the definition of “spouse” under the Family and Medical Leave Act (FMLA) will change effective March 27, 2015. The current definition of spouse follows a “state of residence” rule. Couples who may have been legally married in a state that recognizes their same-sex or common law marriage, but live and work in a state where their marriage is not legal, would not be eligible for FMLA for the serious health condition of their spouse.
Effective March 27 2015, for purposes of administering the FMLA, the definition of "spouse" will be based on the “place of celebration” of marriage rule. The FMLA definition of "spouse" will apply to same-sex marriages and common-law marriages celebrated in a state where the marriage is legal under state law regardless of where they subsequently may live or work. Put differently, same-sex and common-law couples who got married in a state that recognizes their union will now have FMLA protection in any other state they work or reside in, assuming of course their employer is covered by the FMLA. According to the DOL, a 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.
The revised regulatory definition of spouse encompasses individuals in a same-sex marriage entered into outside of the United States as long as the marriage is valid in the place where it was entered into, and could have been entered into in at least one state of the United States (i.e., in a state that authorizes same-sex marriages).
The Final Rule makes no changes to the regulation at 29 C.F.R. § 825.122(k) permitting employers to require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy such a requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. It is the employee’s choice whether to provide a simple statement or another type of document. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.
Civil unions are not considered marriages under the FMLA. Therefore, employees in same-sex civil unions, as well as opposite-sex civil unions, are not guaranteed the right to take FMLA spousal leave nor do they have other protections of the Act, including from retaliation.
The DOL says that this change will also benefit employers by reducing the administrative burden of determining eligibility for FMLA. If the marriage was legal in the state where it took place, employers will not have to worry about whether an employee's FMLA eligibility for their spouse changes if they move to other company locations.
For more information, including FAQ's, see the DOL news release and other relevant documents at http://www.dol.gov/whd/fmla/spouse/.