We advised members on March 9 of the revised US DOL definition of spouse for FMLA purposes that would become effective March 27. The revised definition recognized same-sex and common law marriage entered into in a state where those marriages were legal, although employees may currently live in a state where such marriages are not legal.
Subsequently, four states (Texas, Arkansas, Nebraska, and Louisiana) have since challenged the US DOL’s final ruling revising the regulatory definition of spouse under the FMLA and consequently a U.S. District Court in the Northern district of Texas has granted a preliminary injunction (meaning the revised definition is now on hold pending further review).
Until this issue is completely resolved, CAI recommends that employers revert back to the “state of residence” definition of spouse that was in place prior to March 27: “an employee is eligible to take leave for a spouse with a serious health condition if the employee lives in a state where same-sex marriage or common law marriage is legal”.
In response to a previous lawsuit, the US Supreme Court announced in January that it will determine whether states must honor same-sex marriage regardless of where celebrated and expects to issue a decision by June of this year.
CAI has been advised by Legal Counsel not to define “spouse” within an organization’s FMLA policy statement. This is consistent with the FMLA poster that identifies leave entitlement for an eligible employee to care for their spouse with a serious health condition or for military leave entitlement for a spouse, but does not define spouse.