DOL Extends FMLA Spousal Care Leave Rights to Same-Sex Spouses

The U.S. Department of Labor (“DOL”) recently issued a Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to include same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence. Under the prior FMLA regulations, whether or not an employee had a “spouse” was determined by the law of the state where the employee resided. Notably, however, the Final Rule does not expand the definition of “spouse” to include domestic partners. Rather, only employees who are legally married are covered under the new regulations. The Final Rule takes effect on March 27, 2015.

The FMLA allows an employee to take up to 12 weeks of unpaid, job-protected leave for, among other reasons, to care for his/her spouse or for a qualifying exigency arising out of the fact that the employee’s spouse is a member of the military on covered active duty. It also gives an employee who is the spouse of a servicemember the ability to take up to 26 weeks of unpaid, job-protected leave to care for a covered servicemember with a serious injury or illness.

The DOL’s decision to revise the FMLA’s definition of “spouse” comes on the heels of the United States Supreme Court’s decision in United States v. Windsor, which declared the Defense of Marriage Act (“DOMA”) as unconstitutional. President Obama later instructed all federal agencies to review and revise relevant federal laws to ensure that “the decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

In light of FMLA’s new definition of “spouse,” employers should immediately review their FMLA policies to ensure they comply with the Final Rule. Employers should also notify their employees of the change in the law so that same-sex married employees are aware of their new rights under the FMLA. The attorneys in the Gibbons Employment & Labor Law Department routinely draft and revise employee handbooks, including policies relating to FMLA and leave issues.