Proposed DOL rule redefines FMLA's definition of "spouse"

On June 20, 2014, the DOL released a press release announcing a proposed rule that will extend the definition of "spouse" under the FMLA.  The proposed rule extends protections of the FMLA to all eligible employees in legal same-sex marriages regardless of where they live.  The DOL is proposing this rule in light of the 2013 decision in United States v. Windsor.  In this case, the United States struck down a section of DOMA, which limited the definition of "marriage" to opposite-sex unions, and "spouse" to individuals of the opposite sex.

Currently, the FMLA defines "spouse" by looking at the laws of the employee's state of residence.  The proposed FMLA rule is moving from look at the employee's state of residence to looking at where the employee was married - or the "place of celebration."  The proposed rule would allow an eligible employee in a same-sex marriage to take FMLA to take care of his or her spouse leave regardless of the state that he or she resided in, as long as the "place of celebration" recognized the marriage as legal.

The DOL proposes to redefine "spouse" as follows:

• Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, 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 or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages, or (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

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