Good News on FMLA for Same Sex Spouses

The U.S. Department of Labor (DOL) has published its Final Rule regarding the definition of “spouse” under the Family and Medical Leave Act (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.

The Final Rule, which takes effect on March 27, 2015, amends the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.

In its Final Rule, the DOL adopted the “state of celebration” standard in determining who is considered a spouse for these purposes.  What this means is that an eligible employee who has married a same-sex spouse in any state is permitted to take advantage of spousal FMLA leave, regardless of whether the couple resides in a state where their marriage is recognized.  The DOL previously adopted a “state of residence” rule for purposes of the FMLA — meaning an employee could take advantage of FMLA leave to care for a same-sex spouse only if the couple resided in a state where their marriage is recognized.

As we have written about previously, the “state of celebration” rule is consistent with the approaches adopted by the DOL and the IRS for purposes of other laws governing federal benefits.