On June 20, 2014, the Department of Labor (DOL) released proposed regulations to amend the Family and Medical Leave Act’s (FMLA) definition of “spouse”. The proposed change would expand the FMLA’s definition of spouse by changing the basis for determining a spousal relationship from the state of residency to the place of celebration.

The current FMLA regulations define a spouse as “a husband or wife as 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.” The DOL’s proposed change expands the definition of spouse to require employers to provide leave rights to same-sex partners and common law marriages formed in other states (or countries, so long as the terms of the marriage are legal in at least one U.S. state) where the state in which the employee lives does not recognize the validity of such marriages.

What does this mean for employers?

We anticipate the regulations will be made final. If finalized, the change will impact employers in a number of ways, including:

• The change would permit employees to seek leave for the serious health condition of, the serious illness or injury of, or qualifying exigencies associated with the covered active duty of:
  • the common law or same-sex spouse;
  • a stepchild (i.e., the child of the common law or same-sex spouse) with no side requirement that the employee have stood in loco parentis to the stepchild; and
  • a stepparent (i.e., the spouse of a parent who is engaged in a common law or same-sex marriage) with no side requirement that the stepparent stood in loco parentis to the employee;
• Employers will need to develop familiarity with the common law rules of other states if presented with such a relationship by employees; and
• Employers will need to examine their FMLA policy/forms for any modification that may be required.