DOL Broadens Definition of “Spouse” Under FMLA

Detroit SHRM


By: Miriam L. Rosen


As noted in last week’s Detroit SHRM update, the U.S. Department of Labor (“DOL”) issued a new rule on February 25, 2015 revising the definition of “spouse” for purposes of the Family Medical Leave Act (“FMLA”). The updated definition of “spouse” now extends FMLA leave rights and job protections to eligible employees in same-sex marriages entered into in a state where same-sex marriage is legally recognized, regardless of the state in which the employee currently works or resides.   Employers should note that this new rule is effective March 27, 2015.

Prior to this new rule, the FMLA definition of “spouse” was based on the whether a marriage was recognized in the state in which the employee resided – as opposed to where the marriage actually took place.  As a result, this meant that FMLA coverage did not extend to same-sex spouses or common law spouses when the employee resided in a state that did not recognize the employee’s same-sex or common law marriage.   The DOL acted in response to the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which struck down as unconstitutional the portion of the Defense of Marriage Act that defined “spouse” as a person of the opposite sex.

The DOL’s new rule also addresses state-recognized common law marriages for FMLA purposes. Employees entering into legal common-law marriages retain their FMLA rights when moving to a state that does not recognize common-law marriage.  Employers should note, however, that the rule does not consider individuals in civil unions or domestic partnerships to be “spouses” under the FMLA’s definition.

The new rule brings consistency to application of the FMLA’s terminology. Under the revised definition, a spouse is determined by the law of the place where the marriage was entered into—referred to as the “place of celebration” rule.  An employee who is married in a state recognizing same-sex marriage and who subsequently moves to a state that does not recognize same-sex marriage retains rights under the FMLA—despite the law of the state of residence.  An eligible employee who enters into a legal same-sex marriage in a foreign country is also eligible for FMLA leave and job protection upon returning to a state that does not recognize same-sex marriage.

Currently, 32 states and the District of Columbia recognize same-sex marriages.  For Michigan employers, the new rule means that an FMLA eligible employee may take leave to care for a same-sex spouse, even though Michigan does not currently recognize same-sex marriage.

The DOL’s Fact Sheet accompanying the new rule notes that the definitional change means that an eligible employee in a same-sex marriage can use FMLA leave to care for a step-child. The rule also applies to qualifying exigency FMLA leave and military caregiver leave for a lawfully married same-sex spouse.

The new rule does not change how employers can obtain documentation to confirm a marital relationship.  An employee can establish proof of the relationship by providing a marriage license, a court document, or a statement asserting that the relationship exists. Under the FMLA, it is the employee’s choice to provide a statement or other documentation.  The DOL notes that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”

What steps should an employer take?

With this revision to the FMLA definition of “spouse,” employers must now provide FMLA leave and job protection rights to eligible employees in same-sex and common-law marriages—regardless of whether the employee’s state of residence permits same-sex or common-law marriage. To ensure compliance with the new rule:

  • Employers should review their FMLA policies and forms and, if necessary, update them to comply with the new rule no later than the March 27, 2015 effective date.
  • Employers should train HR personnel, leave administrators and supervisors on the provisions of the new rule.

A copy of the DOL’s Fact Sheet on the new rule is available on the DOL’s website by clicking here.

This article was written by Miriam L. Rosen, a member of the Legal Affairs Committee of Detroit SHRM, and Chair of the Labor and Employment Law Group at McDonald Hopkins.   She can be reached at at (248) 220-1342.

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