hrc blog

the definition of "spouse" under the FMLA to include legally married same-sex spouses

The Department of Labor (DOL) has announced a notice of proposed rule-making to revise the definition of "spouse" under the FMLA to make it clear that the FMLA applies to legally married same-sex spouses, regardless of where they live.

According to an article by Carothers Disante & Freudenberger LLP, "Last year, the United States Supreme Court issued its decision in United States v. Windsor, holding that federal laws that discriminate against same-sex married couples are unconstitutional. As a result of the Windsor decision, the FMLA's provisions allowing family and medical leave to care for a "spouse" became applicable not only to opposite-sex spouses but also to same-sex spouses - so long as the employee requesting leave resides in a state that recognizes same-sex marriage."

"This is because the FMLA currently defines "spouse" in a way that is tied to the law of the state where the employee resides. The problem with the current spousal definition is that many states still do not recognize same-sex marriage, and even if an employee was married in a state that does recognize same-sex marriage, he or she technically is not eligible for FMLA leave (to care for a spouse) if currently living in a state that does not recognize same-sex marriage. This has resulted in administration difficulties for employers, many of whom would prefer not to have to engage in an inquiry about whether the employee resides in a state that recognizes same-sex marriage in order to determine whether to allow the employee leave."

The proposed amendment to the FMLA's "spouse" definition eliminates this problem. Under the proposed rule, "spouse" would be defined to include individuals legally married in any state (including common law marriage where recognized under the law of the state). The definition would also extend to individuals validly married abroad if the individuals could have been legally married in any U.S. state.

The proposed rule has not yet been published in the Federal Register. Once it is, it will be subject to a public comment period and approval process before it is actually approved and implemented.