The Department of Labor has proposed to redefine “spouse” under the FMLA in light of the Supreme Court’s decision in Windsor, striking down DOMA. The FMLA provides unpaid leave for eligible employees to care for their spouse due to the spouse’s serious health condition, if the spouse is a covered servicemember and has a serious illness or injury, and for a qualifying exigency related to the military service of the spouse.
The old regulations looked to the employee’s state of residency and how a husband or wife is defined pursuant to that state’s law. The new regulations look to the law of the jurisdiction in which the marriage was entered into (including for common law marriages) as opposed to the law of the state in which the employee resides. Further, the FMLA now expressly includes same-sex marriages in addition to common law marriages. At the time of the publication, nineteen states and the District of Columbia extend the right to marry to both same-sex and opposite sex couples.
Therefore, even if the employee lives in a state that does not recognize same-sex marriage, there will be FMLA coverage for the employee, provided that the marriage was legal in the “place of celebration” where it occurred.
The Department proposed to define spouse in the following manner:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
Once the regulations are final – and assuming no changes are made from the proposed revisions – no forms will be impacted. Likewise, the Department of Labor’s forms remain optional. That being said, policies and procedures may need to be updated to reflect the current state of the law.