New Rule Issued Defining Spouse Under The FMLA

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

The Department of Labor has just published its Final Rule, to be effective March 27, 2015, which revised the definition of “spouse” as it applies to same-sex couples for the purpose of taking FMLA leave to care for a spouse. The new rule, called the “place of celebration rule,” is based on where the marriage was entered into rather than the previous definition, which depended upon the state of residence. Thus, if the marriage was legal in the jurisdiction where the couple was married, they will be considered spouses even if they reside in a location that does not recognize the marriage. The obvious difficulty with the previous interim rule was that an employer whose place of business is near a state border, or whose employees move or work from one state to another, could be faced with a situation in which same-sex couples’ eligibility for spousal care FMLA leave would depend upon where they live at the time the leave is requested, regardless of whether they were legally married in another jurisdiction.

It is important that anyone in the HR department, or who otherwise has responsibility for determining whether to grant leave under the FMLA, is aware of the new definition of “spouse.” Companies should also examine their FMLA policies and, to the extent they contain a contrary definition of “spouse,” modify them to comply with the new rules.

The Final Rule contained no changes with respect to the method of documentation of the marriage relationship. In that regard, employers should treat same-sex and opposite sex marriage documentation in the same manner.

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