November 29, 2021

Volume XI, Number 333

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November 29, 2021

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DOL Updates Regulations on Definition of Spouse

The U.S. Department of Labor issued a Final Rule expanding the regulatory definition of “spouse” under the Family and Medical Leave Act. Under the revised regulations, effective March 27, 2015, a spouse is a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages. The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States, if it could have been entered into in at least one state.

This change arose out of the U.S. Supreme Court’s June 2013 decision in United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional. Section 3 of DOMA defined spouse for purposes of federal law, which included the FMLA, as a person of the opposite sex. As a result, prior to Windsor, an employee was not entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

After the Windsor decision, the definition of “spouse” extended only to employees in same-sex marriages recognized in their “state of residence.” Therefore, if an employee was lawfully married in a state that recognized same-sex marriage, but lived in a state that did not recognize same-sex marriage, the employee was not a spouse for purposes of FMLA. By looking to the place where the marriage was entered into (referred to as a “place of celebration” rule), rather than the employee’s state of residence, the Final Rule will extend FMLA coverage to more employees.

The new definition of spouse makes FMLA leave available to all eligible employees who are legally married, regardless of where they live, but does not substantively alter other provisions of the FMLA. The revised regulatory definition of spouse also encompasses a husband or wife in a common law marriage, as long as the common law marriage was validly entered into in a state that permits the formation of common law marriages, regardless of the state in which the employee currently resides. Additionally, the revised definition of spouse includes 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 (a state that authorizes same-sex marriages). Keep in mind, however, that “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 rights of a spouse under the FMLA.

To the extent that an employer’s FMLA policy includes the definition of spouse, the policy should ensure it reflects the new regulatory definition. Employers also must revise template forms to conform family relationships to the new regulatory definition.

Jackson Lewis P.C. © 2021National Law Review, Volume V, Number 100
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About this Author

Tasos C. Paindiris, Employment Attorney, Jackson Lewis Law Firm
Principal

Tasos C. Paindiris is a Principal in the Orlando, Florida, office of Jackson Lewis P.C. His practice concentrates on advising clients in many different areas of workplace law.

Mr. Paindiris's experience includes representing clients in a variety of forums, including state and federal courts, the state and federal Departments of Labor, state and local human rights agencies, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Workers’ Compensation Commission, and state unemployment compensation departments.

305-577-7600
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