DOL’s proposed new rule redefining “spouse” in the FMLA

The United States Department of Labor has responded to the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), by seeking to expand the definition of “spouse” in the Family Medical Leave Act to include employees in legal same-sex marriages.  In Windsor, the Supreme Court struck down section 3 of the Defense of Marriage Act as unconstitutional under the Fifth Amendment.  On June 20, Secretary of Labor Thomas E. Perez announced a proposed rule that would change the “place of residence” rule currently applied by the DOL to a “place of celebration rule,” requiring employers to grant FMLA leave to workers whose marriages are valid in the states where they occurred.

The proposed rule would revise the definition of “spouse” in the FMLA to include “the other person with whom an individual entered into marriage,” as defined by the State in which the marriage occurred, and to specifically include “an individual in a same-sex or common law marriage” that was entered into in a State that recognizes such marriages.  It would also include marriages occurring abroad, as long as the marriage is valid in the place where it occurred.

The current FMLA regulatory definition of “spouse” includes employees in same-sex marriages, but only in those states that recognize same-sex marriages.  The proposed rule would require employers to disregard the law in the state where the employee works and look only to the state or country in which the marriage occurred.   As long as the marriage was legal in the state or country where it occurred, the employer would be required to provide FMLA coverage.  Employers in states that do not recognize same-sex marriages will need to learn those states which do recognize such marriages in order to comply with the new definition of “spouse” under the FMLA.

The DOL’s proposed change in the definition of “spouse” requires a period of public comment.  Interested parties may submit written comments on the proposed rule at