The U.S. Department of Labor (“DOL”) today announced a change to the definition of spouse under the Family and Medical Leave Act (“FMLA”).  Under this new rule, which will be published later this week (on February 25, 2015), an employee in a legal same-sex marriage will be entitled to use FMLA leave to care for a same-sex spouse regardless of where the employee lives.  The DOL initially proposed the rule on June 20, 2014.

This change was triggered by the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor.  In Windsor, the Court ruled that the federal Defense of Marriage Act (“DOMA”) was unconstitutional.  Prior to Windsor, and consistent with DOMA, the FMLA defined spouse as a marriage between a man and a woman.  This meant that same-sex married couples could not use FMLA leave to care for each other.  Immediately following Windsor, the DOL announced that an employee could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage (i.e., a “state of residence” approach).  This interpretation meant that a category of same-sex spouses were still unable to use the protections of the FMLA:  those who married in a state recognizing same-sex marriage, but who lived in a state that did not.

This latest rule change, which takes effect on March 27, 2015, shifts to a “place of celebration” approach and ensures that same-sex spouses have the same rights as all spouses to exercise FMLA rights.  In other words, as long as the employee is legally married, and regardless of the legal status of same-sex marriage in the state the employee now resides, the employee can take FMLA leave:

  • to care for a same-sex spouse with a serious health condition;
  • to care for a stepchild who is the child of a same-sex spouse;
  • to care for a stepparent who is the same-sex spouse of the employee’s parent;
  • due to a qualifying exigency related to the same-sex spouse’s covered military service; or
  • to care for a covered servicemember who is a same-sex spouse.