Thursday, August 13, 2015

Labor and Employment Law: New Definition of Spouse Under the FMLA

By Cullan Jones

On February 25, the Department of Labor issued its final rule broadening the definition of “spouse” under the Family and Medical Leave Act (FMLA). The expansion of the definition guarantees that , same-sex couples enjoy the same status under the FMLA as legally married, opposite-sex couples. The final rule went into effect on March 27.

The FMLA allows eligible employees of covered employers to take job-protected leave to care for a spouse with a serious health condition, to address issues arising out of a spouse’s covered military service, and to provide military caregiver leave for a spouse. Covered employers generally include private-sector employers with 50 or more employees in a 75-mile radius and public-sector employers (including local, state, and federal government agencies) regardless of size.

The Department of Labor’s final rule changes the FMLA’s method for determining spousal coverage from the previous “place of residence” rule to a “place of celebration” rule. Under the old rule, spousal status was determined by the laws of the state where the employee resided. Under the new rule, spousal status is determined by the laws of the state where the employee was married. Thus, an employee who is legally married under the laws of a state that recognizes same-sex marriage is entitled to spousal benefits under the FMLA in any state. In practical terms, covered employers must grant spousal benefits under the FMLA to any employee who legally enters into a same-sex marriage, regardless of whether the employer is located in a state that does not recognize same-sex marriage. In addition to extending FMLA rights to spouses in same-sex marriages, the new rule also recognizes the validity of certain same-sex marriages entered into abroad and requires employers to recognize valid common-law marriages. The rule, however, does not protect civil unions or domestic partnerships.

Employees in legal, same-sex marriages — regardless of where they live — now have the same federal family and medical leave rights that opposite-sex married couples have nationwide. The "place of celebration" rule allows eligible employees to take spousal FMLA leave to care for the same-sex spouse with a serious health condition, take qualifying exigency leave for the same-sex spouse’s covered military service, and take military caregiver leave for the same-sex spouse.

Employers should train their leave administrators and managers on the new rule and update existing policies, procedures, forms, notices, and benefit plans to ensure compliance with the expanded definition of "spouse."