DOL Proposed Rule Redefines “Spouse” Under FMLA

In the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Department of Labor has issued a proposed rule changing the definition of “spouse” under the FMLA. This proposed rule, issued on June 20, 2014, would insure that all eligible employees who are legally married, including both same-sex or opposite sex marriages, will be entitled to protection under the FMLA.

In Windsor, the United States Supreme Court struck the DOMA provision which limited “marriage” and “spouse” to opposite sex marriage for the purposes of federal law. In light of this decision, DOL proposes modifying the definition of “spouse” in the context of the FMLA to provide eligible employees in legal same-sex marriages, regardless of where they live, the protection of the FMLA. As it currently stands, spouse under the FMLA only applies to same-sex spouses who reside in states in which same-sex marriage is recognized. The DOL proposal changes this so that eligibility for protection under the FMLA would be based on the law of the place where the marriage was entered into, meaning that all legally married couples would have the same federal family leave rights regardless of whether their states of residence recognize the marriages or not.

In the news release issued by the DOL announcing the proposed rule, the DOL pointed out that following the Windsor decision, President Obama directed the Attorney General to work with the Cabinet to review federal statutes and make sure that the decision is implemented, considering the implications for federal benefits and obligations.
What does this mean? It means that regardless of the state in which they live, eligible employees in legal same-sex marriages would be able to take FMLA leave to care for a same-sex spouse with a serious health condition, take leave due to a same-sex spouse’s covered military service, and take military caregiver leave to care for a same-sex spouse. This would also enable an eligible employee to care for his or her stepchild where the stepchild is the son or daughter or a same-sex spouse.