Revised Definition of “Spouse” Under the FMLA
A newly released proposed rule extends the protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legal same-sex marriages, as well as common law marriages, so they will be able to take FMLA leave to care for their spouse, regardless of where they live. The proposal is intended to help ensure that all families have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. The new rule is proposed in light of the Supreme Court’s decision in United States v. Windsor, in which the court found Section 3 of the Defense of Marriage Act (DOMA), which generally limited the definitions of “marriage” and “spouse” to opposite-sex marriages and spouses, to be unconstitutional.
FMLA Background
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
See the FMLA homepage for more background and links to helpful information.
The New Rule. The rule proposes to change the regulatory definition of spouse to look to the law of the place in which the marriage was entered into (the “place of celebration”), as opposed to the law of the State in which the employee resides (the “state of residence”). A place of celebration rule would allow 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 proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
The Impact on FMLA Usage. The proposed definitional change would mean that eligible employees, regardless of where they live, would be able to:
If the proposed rule were to be implemented as drafted, below are some examples of the situations in which eligible employees would be able to take FMLA leave.
Next Steps. Employers may need to update existing FMLA communication materials to reflect the expanded definition of spouse. Employers offering non-FMLA leaves are encouraged to re-examine existing leave policies to determine if changes will be made to other employee leave types based on this determination. Coordination between mandated state leaves (that may have a different definition of spouse) and the federal FMLA may also be necessary.