November 26, 2022

Volume XII, Number 330


November 23, 2022

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DOL Expands Definition of “Spouse” under the Family and Medical Leave Act

The Department of Labor has issued a Final Rule revising and expanding the definition of “spouse” under the Family and Medical Leave Act. The Rule, which goes into effect March 27, 2015, changes the basis for determining a spousal relationship from the state of the employee’s residence to the “place of celebration” (i.e., where the marriage was entered into). The DOL’s new Rule requires employers to provide FMLA leave rights to same-sex spouses and same-sex common law marriages that were formed in states (or countries, so long as the terms of the marriage are legal in at least one U.S. state) where such a marriage was legal. This Rule applies to employers subject to the FMLA even if the state in which the employee lives does not recognize the validity of such marriages. 

Interestingly, despite the focus on common law marriage, the DOL also makes clear in separate FAQs released on the same day that the definition of spouse does not include individuals who are in a civil union. 

What does this mean for employers?

  • Effective March 27, 2015, eligible employees may seek leave for the serious health condition of, the serious illness or injury of, or qualifying exigencies associated with the covered active duty of:

    • the common law or same-sex spouse;

    • a stepchild (i.e., the child of the common law or same-sex spouse) with no side requirement that the employee have stood in loco parentis to the stepchild; and

    • a stepparent (i.e., the spouse of a parent who is engaged in a common law or same-sex marriage) with no side requirement that the stepparent stood in loco parentis to the employee;

  • Employers should develop familiarity with the common law rules of other states if presented with such a relationship by employees; and 

  • Employers will need to examine their FMLA policy and forms for any necessary modification.  In particular, employers requiring spouses who are both employed by the employer to split FMLA time will want to ensure that the language properly addresses same-sex marriages.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume V, Number 61

About this Author

Charles Stevens, Michael Best Law Firm, Labor and Employment Attorney

A persuasive advocate, Charlie vigorously defends employers and benefit plans in courts and other forums. He excels at assessing and fixing problems that arise with employee benefit programs and providing a strategically driven approach to benefits compliance and risk management planning.

As exclusive employee benefits counsel to many nationwide employers, Charlie’s practice focus extends to:

  • Counseling on Affordable Care Act (ACA) compliance and strategic planning, particularly with respect to contingent...

Kirk Pelikan, Michael Best Law Firm, Labor and Employment Attorney

Kirk’s practice focuses on legal issues related to all aspects of the employment cycle, from hiring through termination and severance. Substantially experienced in both benefits and employment law, Kirk is well positioned to help clients respond to the opportunities, vulnerabilities and benefit ramifications of particular employment decisions.

Kirk’s focus includes:

  • Developing and maintaining effective compliance strategies related to defined benefit plans, defined contribution plans, executive...

Holly E. Courtney, Employment Relations, Michael Best, Law Firm

Holly concentrates her practice on labor and employment disputes and counsel. As a litigator, she mounts forceful and persuasive defenses before federal and state courts and administrative agencies on behalf of employers. As an advisor, she helps management develop and maintain compliant employee policies.

Holly’s focus includes issues related to:

  • Discrimination, including harassment and retaliation
  • Employee leave
  • Wage and hour law
  • Workers’ compensation
  • Unemployment insurance
  • The National Labor Relations Act
  • ...