After the 2013 Supreme Court decision in United States v. Windsor, federal agencies have been moving to align federal policies and procedures with the holding of that case. The Court held, basically, that same-sex marriages performed in states where those marriages are legal are valid, legal marriages for purposes of federal law. To that end, the Department of Labor (“DOL”) promulgated a final rule on February 25th, 2015 that revised the regulatory definition of the word “spouse” to include same-sex spouses from legal marriages to eligible employees for purposes of the Family and Medical Leave Act (“FMLA”). The final rule becomes effective on March 27th, 2015.

FMLA provides unpaid, job-protected leave to eligible employees of covered entities for certain family or medical reasons. (For more on basic FMLA eligibility, please view this earlier post on the subject.) The employee then may use this leave to care for an ill spouse or family member, so the definition of spouse is crucial in this instance.

The DOL’s Final Rule makes two specific changes to FMLA regulations. First, the rule’s definition of spouse now expressly includes an individual in a lawfully-recognized same-sex marriage. The rule also recognizes spouses from lawful common law marriages and marriages performed outside the U.S. if the marriage could have been entered into in at least one state.

The second change will likely be more controversial – the DOL has changed the definition of spouse from a “state of residence” rule to a “place of celebration” rule for purposes of the validity of the marriage.^[1] The import of this is that a court will look to the law of the location of the celebration of the marriage to determine its validity, rather than to the state of residence of the parties. In practical terms, this means that an eligible employee with a same-sex spouse who resides in a state where same-sex marriage is not currently legal will be eligible for FMLA leave to care for that spouse if their marriage was valid in the place it was celebrated.

This development may come as a surprise to employers in states where same-sex marriage bans are currently in effect, such as Kentucky. Employers accordingly should review their FMLA policies and train staff to conduct appropriate inquiries into the validity of marriages of same-sex employees when FMLA leave is triggered.

_{[1] 29 CFR §§ 825.102 and 825.122(b)}