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Department of Labor Revises Definition of “Spouse” under the Family and Medical Leave Act

on Wednesday, 4 March 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On February 25, 2015, the U.S. Department of Labor (“DOL”) issued a Final Rule revising the FMLA’s definition of “spouse” under the Family and Medical Leave Act (“FMLA”) regulations.

Prior to the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which struck down the federal Defense of Marriage Act (“DOMA”) provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law, the DOL treated the definition of “spouse” to include employees in a same-sex marriage if the employee resided in a state that recognizes same-sex marriage.

The new Final Rule changes the regulatory definition of “spouse” to look at the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. The DOL states that the “place of celebration” rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”

The Final Rule’s definition of spouse also expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

Notably, the new rules do not cover civil unions. Therefore, employees in same-sex civil unions, as well as opposite-sex civil unions, are not guaranteed the right to take FMLA spousal leave nor do they have other protections of the Act, including protection from retaliation.

As with other requests for leave to care for a family member, employers may require documentation pursuant to 29 C.F.R. § 825.122(k) to verify that the marriage is valid, which permits employers to require employees to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy such a requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. It is the employee’s choice whether to provide a simple statement or another type of document. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.

Practical Effect for Employers

For employers who have employees who reside in Nebraska (which previously did not recognize same-sex marriage) and Iowa (which recognizes same-sex marriage), the DOL’s previous definition required it to potentially apply two different standards to employees solely on the basis of where they reside. The new rules eliminate this potential inconsistency.

The Final Rule becomes effective on March 27, 2015. On that date, employers may find more eligible employees requesting FMLA leave for the care of a same-sex spouse with a serious health condition, for qualifying exigency leave or military caregiver leave for a lawfully married same-sex spouse, or for the care of the child of the employee’s same sex spouse.

More to Come!

We will discuss this new rule in more detail at Baird Holm’s 27th Annual Labor Law Forum to be held on Thursday, May 7, 2015, at CenturyLink Center Omaha. For more information about FMLA compliance, you can also purchase an archived version of Baird Holm’s February 3, 2015 webinar entitled, “It’s Time to Comply with the Details: FMLA Process and Procedure Step by Step” at /fmlawebinar.

Kelli P. Lieurance

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