DOL Issues Proposed Rule Redefining ‘Spouse’

By Allen Smith Jun 20, 2014

The U.S. Department of Labor (DOL) on June 20, 2014, issued a proposed rule changing the Family and Medical Leave Act (FMLA) rule's definition of “spouse” in light of the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013).

Windsor struck down the Defense of Marriage Act provision interpreting “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

In the proposed rule, “spouse” no longer will be defined by the state of residence, but instead based on where the marriage was entered into—sometimes referred to as the “place of celebration.”

This will allow all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes their marriages.

The proposed rule also will recognize marriages abroad if valid in the place where the marriage occurred.

Where Same-Sex Marriage Is Recognized

As of June 18, 2014, 19 states and the District of Columbia recognize same-sex marriage: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

In addition, 16 countries recognize same-sex marriage: Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, France, Iceland, the Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden and Uruguay.

Impact on FMLA Use

The proposed rule would mean that eligible employees, regardless of where they live, would be able to:

  • Take FMLA leave to care for their same-sex spouse with a serious health condition.
  • Take qualifying exigency leave due to their same-sex spouse’s covered military service.
  • Take military caregiver leave for their same-sex spouse.

Qualifying exigency leave entitles eligible employees to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a “qualifying exigency” related to the foreign deployment of the employee’s spouse, son, daughter or parent.

Military caregiver leave entitles eligible employees who are the spouse, son, daughter, parent or next of kin of a covered servicemember with a serious injury or illness incurred in the line of duty to take up to 26 workweeks of unpaid, job-protected leave during a single 12-month period to care for the family member.

The proposed rule also would entitle eligible employees to take FMLA leave to care for their stepchild—including the child of the employee’s same-sex spouse—even if the “in loco parentis” requirement of providing day-to-day care or financial support for the child is not met.

And it would entitle eligible employees to take FMLA leave to care for their stepparent—including the same-sex spouse of the employee’s parent—even though the stepparent never stood in loco parentis to the employee.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Labor Secretary Thomas Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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