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On February 25, 2015 a Final Rule was issued revising the regulatory definition of spouse under the Family and Medical Leave Act (FMLA). The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.  This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights. The Final Rule is effective on March 27, 2015.

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Major features of the Final Rule

The Department of Labor (DOL) has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations.  The Final Rule changes the regulatory definition of spouse to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides.  A 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 Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

What impact does this definitional change have on FMLA leave usage?

This definitional change means that eligible employees, regardless of where they live, will be able to take:

  • FMLA 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, or
  • military caregiver leave for their lawfully married same-sex spouse.

This change entitles eligible employees to take FMLA leave to care for their stepchild (child of 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.1

This change also entitles eligible employees to take FMLA 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.

The full text of the Final Rule can be found at http://www.dol.gov/whd/fmla/spouse/.

Source:  U.S. Department of Labor, Wage and Hour Division

1 Apart from the Final Rule, the Department has consistently recognized the eligibility of individuals, whether married or not, to take leave to care for a partner’s child if they meet the in loco parentis requirement of providing day-to-day care or financial support for the child.