October 13, 2019

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DOL Extends FMLA Spousal Leave Rights to Same-Sex Spouses in All States

On February 23, 2015, the U.S. Department of Labor (DOL) Wage and Hour Division published its final rule regarding the definition of “spouse” under the Family and Medical Leave Act (FMLA). Specifically, the rule recognizes all lawful same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence. This final rule takes effect on March 27, 2015.

The FMLA permits eligible employees to take unpaid leave to care for a spouse with a serious health condition. Under the final rule, the DOL adopts the “state of celebration” rule in determining who is considered a spouse for these purposes. Accordingly, an eligible employee who has married a same-sex spouse in any state is permitted to take advantage of spousal FMLA leave, regardless of whether the couple resides in a state where same-sex marriage is recognized. The DOL previously adopted a “state of residence” rule for purposes of the FMLA, meaning an employee could take advantage of FMLA leave to care for a same-sex spouse only if the couple resided in a state where same-sex marriage is recognized. The “state of celebration” rule is consistent with the approaches adopted by the DOL and the Internal Revenue Service for purposes of other laws governing employee benefits.

Employers must review and revise their FMLA leave policies in light of this new definition to ensure spousal FMLA leave is extended to same-sex couples residing in all states beginning March 27, 2015.

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About this Author

Associate

Jacob Mattinson is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  He focuses his practice on matters related to employee benefits and executive compensation.

312-984-3263
Brian J. Tiemann, Labor Attorney, McDermott Law Firm
Partner

Brian J. Tiemann is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.   Brian focuses his practice on a variety of employee benefits matters related to pension plans, 401(k) plans, employee stock ownership plans (ESOPs), cafeteria and welfare plans, executive compensation and the implementation of benefit programs for domestic partners of employees.  He is a member of the Firm’s ESOP Affinity Group and has worked with clients to structure and maintain the qualified status of their ESOPs with the Internal Revenue...

312-984-3268