A new proposed rule would change the definition of “spouse” for purposes of the federal Family and Medical Leave Act (FMLA), so that an eligible employee in a legal same-sex marriage may take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides.

FMLA Basics

The FMLA entitles an eligible employee of a covered employer (50 or more employees in at least 20 workweeks in the current or preceding calendar year) to take unpaid, job-protected leave for specified family and medical reasons, including to care for the employee’s spouse who has a serious health condition. It also includes certain family military leave entitlements.

Changes to FMLA Eligibility for Same-Sex Spouses

In the wake of the U.S. Supreme Court decision invalidating part of the federal Defense of Marriage Act (DOMA), the U.S. Department of Labor previously revised its agency guidance to clarify that the FMLA’s definition of “spouse” covers same-sex spouses residing in states that recognize such marriages.

The proposed rule significantly changes the previous guidance by defining “spouse” based on the law of the place where the marriage was entered into, sometimes referred to as the “place of celebration.” This definitional change 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; or
• Take FMLA leave to care for their stepchild or stepparent, even if certain in loco parentis requirements are not met.

A fact sheet and FAQs are available regarding the proposed changes.  For clients of The Insurance Group, our section on the Family and Medical Leave Act within the HR Library on the Client Resource Center provides more information about eligibility requirements and qualifying reasons for FMLA leave.