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U.S. Department of Labor Seeks to Expand Definition of "Spouse" Under FMLA

Labor & Employment

By: Peg O'Brien, Esquire


July 11, 2014
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Recently, the U.S. Department of Labor ("USDOL") issued a notice of proposed rulemaking regarding the definition of "spouse" under the federal Family and Medical Leave Act ("FMLA"). (See Notice available here). The proposed rule would expand the definition of "spouse" to include all legally married, same-sex spouses, regardless of where they reside at the time FMLA leave is requested. This proposed rule was made in response to the U.S. Supreme Court's decision last summer in United States v. Windsor, which invalidated portions of the Defense of Marriage Act ("DOMA") as unconstitutional. (See June 28, 2013 E-Alert here).

Overview of FMLA: The FMLA applies to private employers with 50 or more employees and to public employers of all sizes. The law entitles eligible employees to take a protected, unpaid leave of absence from work for certain qualifying reasons. Some of these "qualifying reasons" hinge on the FMLA's definition of "spouse." In particular, the FMLA's definition of "spouse" impacts an eligible employee's right to take leave: (1) when leave is needed to care for a spouse due to the spouse's serious health condition; (2) when leave is needed to care for a spouse who is a covered servicemember with a serious illness or injury; (3) when leave is needed to address qualifying exigencies related to the military deployment of a spouse; (4) when leave is needed to care for a stepchild with a serious health condition (e.g., the child of the eligible employee's same-sex spouse); and (5) when leave is needed to care for a stepparent with a serious health condition (e.g., the same-sex spouse of an eligible employee's parent).

At present, the FMLA regulations provide that same-sex married couples are considered "spouses" for purposes of FMLA leave only if they currently reside in a state that recognizes same-sex marriage. This is often referred to as the "state of residence" rule. At present, nineteen states recognize same-sex marriage, including New Hampshire and all of the other New England states.

Prior to the Windsor ruling, this above definition of "spouse" did not materially impact the application of FMLA. When DOMA was enacted in 1996 (three years after the FMLA), it limited the definition of "marriage" to mean only a legal union between one man and one woman, and "spouse" to mean only a person of the opposite sex. In light of this federal law, the USDOL restricted its regulatory definition of "spouse" to correlate with the definition of "spouse" under DOMA. Consequently, under the DOMA-controlled definition, same-sex spouses did not enjoy the benefits of FMLA. Following Windsor, however, the USDOL's regulations are no longer restricted by DOMA's definitions of "spouse" or "marriage" and the regulations' precise wording, and in particular their definition of "spouse," has become important to the application of FMLA.

In review of the FMLA's regulations following Windsor, the USDOL has concluded that there is inconsistency in its application. Same-sex couples residing in states that recognize same-sex marriage are eligible for FMLA spousal leave, while same-sex couples residing in states that do not are denied the same FMLA protected leave.

Proposed Rule: To address this inconsistency, the USDOL's proposed rule would replace the above definition of "spouse" with a definition that is based on whether the employee was legally married in a state (or country) that recognizes same-sex marriage. This is often referred to as the "place of celebration" rule. With the "place of celebration" rule, the employee could take FMLA leave even if the state where the employee currently resides does not recognize same-sex marriage. Accordingly, under the proposed rule, as long as an employee entered into a legal marriage in a state or country that recognizes same-sex marriage, he/she will be eligible to take spousal leave under the FMLA. (See USDOL Fact Sheet on Proposed Rule here).

In its Notice of Proposed Rulemaking, the USDOL states that "[a] place of celebration rule will allow all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of the State in which they reside " and "will give fullest effect to the purpose of the FMLA to permit employees to take unpaid leave to care for a seriously ill spouse" and other qualifying reasons based on a spousal relationship. (See Wage and Hour Division Notice of Proposed Rulemaking here).

The deadline for submitting comments to the USDOL relating to this proposed rule change is August 11, 2014. Employers covered by the FMLA should take care to monitor this developing rule change. Please do not hesitate to contact any of the attorneys in Devine Millimet's Labor and Employment Practice Group with questions regarding this proposed rule change.


The Devine, Millimet & Branch Labor, Employment and Employee Benefits Group offers this free bi-monthly E-Mail Alert service to provide information on recent developments in labor, employment and employee benefits law. If you have any questions about this e-mail, or if you know of anyone else who may be interested in receiving these alerts, please send us an email at

This E-Alert is provided for informational purposes only. It is not intended to serve as legal advice or legal opinion. Devine, Millimet & Branch, Professional Association makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Devine Millimet attorney with whom you regularly work.

Copyright 2014 Devine, Millimet & Branch, Professional Association


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