On February 25, 2015, the U.S. Department of Labor’s Wage and Hour Division issued a Final Rule [pdf] revising the definition of spouse under the Family and Medical Leave Act (FMLA) so that eligible employees in legal same-sex marriages may take FMLA leave to care for their spouse or family member.  Effective March 27, 2015, the term spouse will include a same-sex spouse, even if an employee is living in a state that doesn’t recognize same-sex marriages.

The FMLA allows eligible workers of covered employers to take 12 months of unpaid leave every 12 months to care for a newborn or for a spouse, child or parent with a serious health condition, among other things. The law covers private sector employers with 50 or more workers.  Until now, spouse was defined with respect to an employee’s state of residence, which meant that an employee living in a state that does not recognize same-sex marriage would be treated differently than an employee living in a state that does recognize same-sex marriage.  Under the Final Rule, spouse is defined with respect to the law of the “place of celebration”, or where the marriage was entered into.  Thus, all legally married couples, whether opposite-sex or same-sex, will have consistent FMLA rights, no matter where they live.

The Final Rule was revised in light of the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013), that the portion of the Defense of Marriage Act that interpreted “spouse” to be limited to opposite-sex spouses was unconstitutional. 

Companies should review their FMLA policies, procedures and related documents to ensure they are consistent with the Final Rule, and should educate those responsible for the administration and supervision of FMLA leave about the new rule.  The Department of Labor’s FAQs regarding the Final Rule are available here.