518-373-4111
Recently the Department of Labor issued a final rule, effective March 27, 2015, that updates and expands the definition of spouse for purposes of the Family and Medical Leave Act (FMLA). Under this FMLA revised definition of spouse, eligibility under the FMLA will be decided based on whether the marriage was legal in the state in which it was performed, as opposed to the test under the prior rule, which looked at whether the marriage was legal in the state in which the employee resides.
The biggest impact of this new rule is for same sex couples. Prior to this rule change, if an employee entered into a valid same sex marriage in a state where it was legal, but lived in a state where it was not, his or her spouse would not be eligible for FMLA benefits. Now, that spouse will be recognized as a spouse under the FMLA.
This rule change is in response to the Supreme Court’s decision in United States v. Windsor, which struck down a portion of the Defense of Marriage Act (DOMA). After that ruling, most federal departments and agencies announced that that all married same sex couples were eligible for benefits. For FMLA purposes, however, adopting that position was not possible, as there was already a rule in place dictating that the state of residence determined whether a person was a spouse eligible for FMLA benefits. The Department of Labor announced in 2013 that it would be working to change that rule and this finalization is the culmination of that effort.
While the most publicized effect of this new rule is that it makes many same sex spouses eligible for FMLA, it will also act to grant FMLA rights to common law spouses if the couple became common law spouses in one of the nine states* where it is recognized but now lives in a state where common law relationships are not recognized.
In response to this rule change, employers should ensure that they are properly defining “spouse” for all employees who are in same sex and common law marriages. If the same sex marriage or the common law marriage was entered into in a state where it was legal, employers should treat those spouses as spouses for FMLA purposes, even if those unions are not recognized in the state in which the employee resides.
*Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Rhode Island, South Carolina, Texas
For more information, contact GTM at (518) 373-4111.
