Update to FMLA Definition of “Spouse”

The Department of Labor (“DOL”) has updated selected regulations to the Family and Medical Leave Act (“FMLA”). The updates change the definition of spouse to mean: “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 . . . .”

Essentially, the change now requires employers to recognize FMLA leave for same sex individuals if the marriage is recognized and valid in the state where they were married. This change departs from the previous rule that requires recognition of the marriage by the state where the employee resides. This update will impact several parts of FMLA regulations, including leave for pregnancy, adoption, next of kin, and the care of a parent.

Although this new rule brings FMLA closer to the definition of spouse in other federal regulations and Supreme Court precedent, it does not include domestic partners. It must be a legally recognized marriage, including common law marriage, but it does not include a domestic partnership.

For employers, this may mean updating employee manuals and handbooks, as well as being aware of the laws of the various states when an individual applies for FMLA leave. The DOL does not expect compliance with the new regulations to add substantial cost.

The update to the federal regulations can be found at the following link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-03569.pdf

© 2015 Houghton Vandenack Williams
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Does an Employer Have to Provide Benefits for an Employee’s Domestic Partner If the Employee Is in a Same-Sex Union?

An Employee Benefits FAQ with Joshua A. Diveley.

In 2013, there was a Supreme Court case named Windsor in which the Supreme Court said that for federal law purposes, the term “spouse” must include a same-sex spouse. The Department of Labor and IRS recently came out and said that to determine whether someone is a same-sex spouse covered by that law, you look at the state of celebration of the marriage. So, with one exception, that is going to apply for all federal benefits–benefits covered by federal law.

The exception is FMLA, which says that the state of residency is what determines whether it is a marriage or not. For example in Nebraska, if an individual lived there then the state of residency would say that we don’t recognize same-sex marriage, but if somebody from Nebraska went to Iowa and was married, the state of celebration, Iowa, would say that the same sex marriage would be valid. So in that case, that would be the one exception where for FMLA purposes, the Nebraska resident would not be covered.

© 2014 Parsonage Vandenack Williams LLC

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