FMLA Final Rule Defines Spouse According to “Place of Celebration” Rule
The DOL has issued a final rule revising the regulatory definition of “spouse” for purposes of the FMLA. Effective March 27, 2015, spousal status will be determined based on the marriage’s “place of celebration” rather than the employee’s “state of residence.” Under the place of celebration rule, all legally married couples will have consistent FMLA rights regardless of where they live. The final rule, which is unchanged from the proposed rule, expressly includes individuals in lawfully recognized same-sex and common-law marriages, including those validly entered into outside of the United States so long as they could have been entered into in at least one state.
The FMLA entitles eligible employees of covered employers to take a specified amount of unpaid, job-protected leave for certain family and medical reasons. The change in spousal definition means that eligible employees, regardless of state of residence, will be able to take FMLA leave to care for a same-sex spouse with a serious health condition, qualifying exigency leave due to a same-sex spouse’s covered military service, or military caregiver leave to care for a same-sex spouse who is a covered service-member with a serious illness or injury. The change also entitles eligible employees to take FMLA leave to care for the child of their same-sex spouse (i.e., the employee’s stepchild) regardless of whether the employee provides day-to-day care or financial support for the child (and thus stands “in loco parentis”). Similarly, leave may be taken to care for the same-sex spouse of an employee’s parent (i.e., the employee’s stepparent), regardless of whether the stepparent ever stood in loco parentis to the employee.
The final rule provides consistency for employers operating in multiple states and aligns the FMLA’s definition of spouse with other federal laws using the place of celebration rule. While most federal benefits laws are now administered using the place of celebration rule, some are still statutorily bound to the state of residence rule. The Supreme Court has agreed to address the constitutionality of state laws prohibiting same-sex marriage with a decision expected this June. A ruling in favor of same-sex marriage will eliminate the need for the place of celebration vs. state of residence distinction, while a ruling upholding states’ rights to ban same-sex marriage (or refuse to recognize same-sex marriages performed in other states) will leave the onus on federal agencies to determine how “spouse” will be defined for purposes of various federal laws.