DOL Modifies FMLA Definition of “Spouse” to Include Same-Sex Marriages

Feb 24, 2015

Today, SHRM was advised by the U.S. Department of Labor (DOL) that the agency would be issuing a final rule in tomorrow's Federal Register updating the definition of “spouse” under the Family and Medical Leave Act to include same-sex marriages. SHRM supported updating the definition of spouse in light of the U.S. Supreme Court decision striking down sections of the Defense of Marriage Act but suggested several clarifications to the rule to ensure successful and uniform interpretation.

The final rule highlights SHRM’s request for greater clarity in several places and provides additional guidance for HR professionals on how to apply the rule. Key provisions include:

  • Eligibility: To determine eligibility for FMLA benefits as a spouse, employers should look to the law in the state where the marriage was entered into (State of Celebration) rather that state where the employee resides. This change is consistent with revised rules issued by Internal Revenue Service, Department of Defense, and other agencies;
  • Documentation: Allows, but does not mandate, employers to require employees who take leave to care for a family member to “provide reasonable documentation of the family relationship.” The employee may choose which reasonable documentation to present and it “may take the form of either a simple statement from the employee or documentation such as a birth certificate or court document”;
  • Definition: “Spouse” includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state;

The updated definition and rule revisions go into effect March 27, 2015.

SHRM’s comments to the proposed rule can be read at

DOL posted information, including a Q&A on the final rule, is available at


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