U.S. Department of Labor Adopts New FMLA Regulation on Same Sex Spouses

By Ralph R. Smith, 3rd, Esq.

Recently, the United States Department of Labor (“DOL”) updated its regulatory definition of “spouse” to take into account how to determine when same gender spouses may be eligible for leave under the Federal Family and Medical Leave Act (“FMLA”).  The new proposed regulation that became final and enforceable on March 27, 2015 has adopted a “place of celebration” approach for determining when a same sex spouse is entitled to FMLA leave.  Under this standard, an employee in a legal same gender marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides.  So long as the state where the wedding celebration took place recognizes the legal status of the same sex marriage, FMLA rights exist, even when the resident state does not recognize the legal status of same sex marriage.  This regulation is a change from the then existing DOL regulation that did not include same-gender spouses within the definition of “spouse” if an employee resided in a state that did not recognize same sex marriages. This now discarded approach is known as the “state of residence” approach.

A regulatory change to the definition of “spouse” became necessary because of the U.S. Supreme Court’s decision in U.S. v. Windsor which struck down a provision in the Federal Defense of Marriage Act that interpreted “marriage” and “spouse” as limited under federal law to opposite gender marriages.   In adopting this regulatory “hard and fast” rule, the DOL believes that it has made an employer’s FMLA administrative burden easier for same gender spouses, particularly where that employer has multiple state facilities or utilizes employees who move freely between states that have different marriage recognition laws.

In light of this recent regulatory change, employers need to update FMLA policies and train staff on this new regulatory meaning of “spouse” so management knows how to appropriately administer required FMLA legal requirements.