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New FMLA Regulations Expand Definition of Spouse and Include Same-Sex Spouses

The U.S. Department of Labor has issued regulations expanding the Department’s definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA) so as to entitle eligible employees in legal same-sex marriages to take FMLA leave to care for their spouse or covered family member, regardless of where they live. The new regulations are effective March 27, 2015.

 The DOL regulatory action follows the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which held that Section 3 of the Defense of Marriage Act (defining “spouse” as only a person of the opposite sex who is a husband or a wife) was unconstitutional. 

Major Features 

The new regulations have two major features. First, establishing a spousal relationship for FMLA purposes now depends on the law of the place in which the marriage was entered into (“place of celebration”), as opposed to the law of the state in which the employee resides (“place of residence”). Unlike the previous “place of residence” rule, where establishing a spousal relationship depended on whether same-sex marriage was recognized by the state in which the employeeresided, the new “place of celebration” rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. The “place of celebration” rule is consistent with the interpretation adopted by other federal agencies, such as the Department of the Defense and the Internal Revenue Service. 

Second, the new regulations’ definition of “spouse” expressly includes individuals in lawfully recognized same-sex and common law marriages and all marriages that were validly entered into outside of the United States if they could have been entered into lawfully in at least one U.S. state.

Impact of the Change 

This change in the definition of “spouse” under the FMLA means that eligible employees, regardless of where they live, will be able to take:

  • leave to care for their lawfully married same-sex spouse with a serious health condition;

  • qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service; 

  • military caregiver leave for their lawfully married same-sex spouse;

  • leave to care for a stepchild (child of the employee’s same-sex spouse), regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met; and

  • leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.

What this Means for Employers

For employers with multi-state operations, the new regulations create greater uniformity in administering FMLA leave for same-sex spouses. If employers generally seek documentation confirming covered family relationships, they may want to consider requiring documentation to confirm same-sex spousal relationships. Employers will need to know or research the same-sex marriage laws, including the standards for common law marriage, of specific states or countries when employees request FMLA leave to care for a spouse, child or parent and the basis of the family relationship is a same-sex marriage. Employers similarly will need to understand whether an employee or parent is in a same-sex marriage or a civil union. Civil unions are not considered marriages under the FMLA. 

Steps Employers Should Consider Taking

In light of the new regulations, employers should consider the following:

  • Reviewing and revising FMLA policies to ensure the definition of “spouse” reflects the new regulatory definition.

  • Revising or developing template forms to confirm family relationships consistent with the new regulatory definition.

  • Identifying resources that may assist them in finding same-sex marriage laws, including the standards for common law marriage, in other states and countries when such situations arise.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 56


About this Author

Joseph J. Lynett, Jackson Lewis, educational institutions lawyer, disabled students litigation attorney

Joseph J. Lynett is a Principal in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on assisting employers, businesses, and educational institutions in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, as well as disabled students and members of the public.

Mr. Lynett defends employers, business and educational institutions in federal and state courts and before administrative agencies, including the U.S. Equal Employment Opportunity...

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

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.

Alison Jacobs Wice, Workplace Law, Counsel, Training, Litigation, Jackson Lewis Law Firm

Alison Jacobs Wice is Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. She represents management exclusively in workplace law and related advice, counsel, training and litigation.

Since joining Jackson Lewis in September 2003, and throughout her career, Ms. Wice has represented employers in state and federal trial, appellate and administrative proceedings throughout the United States involving the full spectrum of substantive issues covered by the firm's employment law practice. She provides advice and counsel to corporate clients on a...

Katrin Schatz, Employment Attorney, Litigation, Arbitration, Jackson Lewis Law Firm

Katrin Schatz represents management in all major areas of labor and employment law.  In her more than 13 years of practice, Ms. Schatz has defended employers nationwide in court, arbitrations and administrative proceedings in a broad range of employment matters, including class, collective and multi-plaintiff actions.  She has handled cases involving claims of age, race, disability and gender discrimination, wrongful discharge, whistleblower retaliation, wage and hour and ERISA violations, as well as disputes arising out of covenants not to compete, corporate trade...