The U.S. Department of Labor (the “DOL”) recently published a final rule changing the definition of “spouse” for purposes of the Family and Medical Leave Act (the “FMLA”) to allow an employee to take FMLA leave to care for a same-sex spouse even if the employee resides in a state that does not recognize same-sex marriage (80 Fed Reg 10,162 (Feb. 25, 2015)). The amended rule bases the validity of a marriage on law of the state where the marriage was formalized (i.e., the “place of celebration”), rather than the state where the employee lives (i.e., the “place of residence”). This ensures that all legally married couples will have consistent FMLA leave rights regardless of where they live.
The change follows the U.S. Supreme Court’s recent decision in United States v. Windsor, 133 S Ct 2675 (2013), which found Section 3 of the federal Defense of Marriage Act (“DOMA”) to be unconstitutional. (Section 3 of DOMA defined “marriage” for purposes of federal law to mean only a legal union of one man and one woman.)
The FMLA allows an eligible employee of a covered employer to take up to 12 weeks of job-protected leave in a 12-month period for a variety of reasons, including caring for the employee’s spouse who has a serious health condition. It also allows an eligible employee to take up to 26 weeks of leave in a 12-month period to care for a covered military servicemember with a serious injury or illness, if the employee is the spouse, child, parent, or next of kin of the servicemember.
The original FMLA regulations, issued when no states recognized same-sex marriage, defined “spouse” as a “husband or wife” according to the law of the state where the employee resided. Shortly after Windsor, the DOL noted that the FMLA’s definition of “spouse” includes a same-sex spouse in a same-sex marriage that is valid in the employee’s place of residence. The DOL’s new rule requires an employer to look to the place of celebration, rather than the place of residence, to determine whether an employee’s spouse is a “spouse” for purposes of taking FMLA leave. For a marriage performed outside the United States, “spouse” for FMLA purposes means a spouse in a marriage recognized in the place of celebration, if the marriage could have been entered into in at least one U.S. state.
What does this mean for employers? For employees located in Oregon, Washington, and other states that already recognize same-sex marriage, this change won’t have any impact. But organizations with FMLA-covered operations in states that do not currently recognize or allow same-sex marriage should be aware that their FMLA-eligible employees in those states are entitled to FMLA leave to care for same-sex spouses as long as the marriages were legal in their places of celebration. According to the DOL, as of February 13, 2015, 32 states and the District of Columbia had extended the right to marry to same-sex couples. On the international scene, 18 countries permit same-sex marriage. Information on the status of same-sex marriage in the United States and foreign jurisdictions is available online.
The FMLA allows employers to require employees who take leave to care for a spouse (or other covered family member) to provide reasonable documentation of family relationship. This documentation could include a government-issued document such as a marriage certificate, or it could be a written statement by the employee. The employee may choose what type of documentation to provide, and employers should be careful not to request more or different types of documentation for same-sex versus opposite-sex spouses, or to request proof of family relationship only in the case of same-sex spouses.
Finally, employers should remember that the FMLA does not extend to leave taken to care for unmarried domestic partners—only legally married spouses, including same- or opposite-sex common-law spouses. Employers should also be sure to check state family and medical leave laws, which may provide for leave to care for unmarried employees’ domestic partners or other family members not covered by the FMLA.