On June 20, the Department of Labor (“DOL”) proposed regulations to amend the Family and Medical Leave Act’s (“FMLA”) definition of “spouse.” Current FMLA regulations define a spouse as “a husband or wife defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in States where it is recognized.” (emphasis added). The DOL is proposing to move from a “state of residence” rule to a rule based on the “place of celebration” (i.e., where the marriage was entered into). The proposed definition specifically includes same-sex marriages and reads as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into, or in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

If the proposed rule is made final, it means that an eligible employee in a legal same-sex marriage will be permitted to take FMLA leave for his or her spouse or family member, regardless whether the state that the employee resides in recognizes same-sex marriage.

The DOL’s proposed change was not a surprise, considering the June 2013 decision in United States v. Windsor, in which the United States Supreme Court struck down section 3 of the Defense of Marriage Act, which limited the definition of marriage to opposite-sex unions and “spouse” to individuals of the opposite sex who are married. The Windsor decision did not invalidate section 2 of the Defense of Marriage Act, which permits states to refuse to recognize same-sex marriages performed in other states.

Following the on the heels of the DOL’s proposal, on July 1, U.S. District Judge John G. Heyburn II concluded that Kentucky’s prohibition on same-sex marriage violates the Equal Protection Clause by treating same-sex couples differently than heterosexual couples. Heyburn previously struck down Kentucky’s ban on recognizing same-sex marriages from other states and countries, but he put the implementation of that ruling on hold. The decision will likely be appealed. In addition, the U.S. 6th Circuit Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session, on Aug. 6. The cases are unique and involve different facts, but each deals with whether statewide gay marriage bans violate the Constitution.

While it is too early to know what will be the end result with the recent Heyburn ruling or the slew of cases to be heard in the Sixth Circuit Court of Appeals, it is highly likely the DOL’s proposed definition will become law. Employers, especially those in states that do not recognize same-sex marriage, should keep an eye on the development so that they can revise and implement policy and procedures to be compliant with federal law.

The proposal was published in the Federal Register on June 27 and interested parties can submit written comments on the proposal at www.regualtions.gov until August 11, 2014.