FMLA Definition of “Spouse” Expanded

In February, the U.S. Department of Labor, Wage and Hour Division issued a proposed change to the Family and Medical Leave Act’s definition of “spouse” to include all legal same-sex marriages. The regulations are being revised in order to comply with the Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional.[1] The effective date of the rule change is March 27, 2015.[2]

Under the Family and Medical Leave Act (“FMLA”), eligible employees are provided with leave to care for a spouse where the spouse has a serious health condition; the spouse is a covered servicemember with a serious illness or injury; and the spouse has a qualifying exigency in connection with his or her covered military service.[3] Under the Act, “spouse” is defined as a husband or wife.[4] As of February 2015, the FMLA regulatory definition of spouse as a husband or wife as defined or recognized under state law included an eligible employee in a legal same-sex marriage who resides in a state that recognizes same-sex marriage.[5] Ohio does not recognize same-sex marriages,[6] and therefore, Ohio employers were not obligated to recognize same-sex marriages of employees residing in Ohio for purposes of FMLA leave.

The Department of Labor now seeks to adopt a place of celebration rule, instead of a state of residence rule. The definition of “spouse” will be determined based upon the law of the jurisdiction in which the marriage was entered, including same-sex and common law marriages, as opposed to the law of the state in which the employee presently resides.[7] Though Ohio does not recognize same-sex marriages, any same-sex marriage legally performed in another jurisdiction must be recognized in the State of Ohio with respect to spousal leave under the FMLA. As long as the marriage was legally valid in the place where it was entered into, it shall be recognized.

The definition of “spouse” will change effective March 27, 2015.[8] The revised definition will read as follows:[9]

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Eligible employees will be able to (1) take leave to care for a lawfully married same-sex spouse with a serious health condition; (2) take military caregiver leave for a lawfully married same-sex spouse; (3) take qualifying exigency leave due to a lawfully married same-sex spouse’s covered military service; (4) take leave to care for a step-child (child of employee’s same-sex spouse);[10] and (5) take leave to care for a stepparent (same-sex spouse of employee’s parent).[11] Employers should review existing FMLA policies and forms for any definitions of “spouse” that do not comply with the rule change.