U.S. Department of Labor Revises Its Definition of “Spouse” Under the Family and Medical Leave Act

Title:
U.S. Department of Labor Revises Its Definition of “Spouse” Under the Family and Medical Leave Act
Publication:
Labor & Employment Alert April 2015
Attorneys:
Practice:

United States Department of Labor Revises Its Definition of “Spouse” Under the Family and Medical Leave Act

Effective March 27, 2015, a federal regulation went into effect extending FMLA benefits. 

Employers nationwide are subject to the United States Department of Labor’s revised definition of the term “spouse” under the Family and Medical Leave Act (FMLA).  The Department’s revised regulations provide employees in legal marriages (same-sex or otherwise) the right to take FMLA leave to care for their spouse, even if the state in which the employee resides does not permit or recognize the marriage.  Thus, if an employee has been legally married in any state that permits same-sex or common law marriages, the employee is considered married and entitled to rights under the FMLA.  As of February 2015, thirty-two states (including New Jersey and New York) and the District of Columbia extend the right to marry to both same-sex and opposite-sex couples.  Under the Department’s old regulations, employers only needed to consider the law of the state in which the employee resides to determine whether the employee is eligible to take FMLA leave for a same-sex or common law spouse. 

Employees married outside of the United States also qualify for FMLA leave under the Department’s revised regulations, provided that employees could have legally entered into marriage in at least one state.  Eighteen countries currently extend the right to marry to both same-sex and opposite-sex couples.   

The Department’s decision to revise its definition of “spouse” under the FMLA emanates from the United States Supreme Court’s 2013 decision in United States v. Windsor, which held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional under the Fifth Amendment to the United States Constitution.  

The Department of Labor’s decision to revise its definition of “spouse” under the FMLA is likely to affect many employers’ FMLA leave policies and practices.  For example, in addition to being able to take FMLA leave to care for a spouse, an employee in a same-sex or common law marriage may now be able take FMLA leave to care for a child of his or her spouse (i.e., his or her “stepchild”).  Similarly, an employee with a parent in a same-sex or common law marriage may be able to take FMLA leave to care for his or her stepparent.  If you have any questions about how the Department’s revised FMLA regulations may affect your business or personal situation, please contact Scott Ohnegian, Daniel Zappo, or any member of Riker Danzig's Labor & Employment Group.