New Rule on Definition of “Spouse” Under the
FMLA
March 4, 2015
Highlights
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A new rule will amend the definition of “spouse” and recognize all legal same-sex (and
common law) marriages regardless of the law of the state in which the employee resides
(the current rule.)
The rule was published last week and will become effective on March 27, 2015.
This “state of celebration” rule, as it’s called, is nearly identical to the rule proposed in
June 2014.
Overview of the New Rule
On Wednesday, February 25, 2015, the U.S. Department of Labor (DOL) published a final rule revising the
definition of spouse under the FMLA to include all legal same-sex (and common law) marriages regardless of
where the employee lives. The rule will take effect 30 days from publication on March 27, 2015.
The new definition of spouse relies upon the state where the employee and his/her spouse “entered into legal
marriage.” As long as the employee’s marriage was legal when and where it was performed, he/she will be
able to take FMLA to care for his/her spouse regardless of the marriage laws in which the employee resides
or works.
The text of rule can be found here: https://www.federalregister.gov/articles/2015/02/25/2015-03569/definitionof-spouse-under-the-family-and-medical-leave-act
Change in More Detail
What is the definition?
The DOL has changed the definition and the related regulations (e.g., Section 825.102 and 825.121) to read:
“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.”
The “state of celebration” rule applies to same-sex and opposite-sex marriage including, where applicable,
common law marriages.
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What types of leaves are affected?
Overwhelmingly, the changes will be seen in leaves where the employee is caring for his or her spouse. In
total, however, there are five situations affected by the change. They are:
 Caring for a same-sex (or common law) spouse with a serious health condition
 Leave due to a same-sex spouse’s covered military service (qualifying exigency leave)
 Caring for a military service person (military caregiver)
 Caring for a stepchild (child of 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, or
 Caring for a stepparent (same-sex spouse of the employee’s parent), even though the stepparent
never stood in loco parentis to the employee.
On the last two examples, employees still may have been able to take leave for the child of their same-sex or
common law spouse under the current rule, but would have had to show an in loco parentis relationship. That
is, the employee must show financial support or day-to-day responsibilities either for the child or, for purposes
of an in loco parentis parent, show the parent had such responsibilities when the employee was a child.
Under the new rule, the family member would have a covered stepparent or stepchild relationship.
What’s the background of this rule?
The final rule largely follows the one proposed by the DOL on June 23, 2014, created to accord with the
United States Supreme Court's decision in United States v. Windsor. In that decision, the Court held that
parts of the Defense of Marriage Act (DOMA) were unconstitutional, thereby reverting back to the original
FMLA definition of spouse in which a spouse is defined according to the laws of the state in which the
employee “resides.”’ In short, an employee’s ability to take a leave for a same-sex (or common law) spouse
was dependent upon where he/she lived.
As a result, employers were required not only to know where each leave requestor resided, but also keep up
to date on a changing landscape of state marriage laws. The new rule resolves this. As long as the marriage
was legal where and when it was entered into, the employee is able to take leave for a spouse no matter what
the rule is in the state in which he/she lives and/or works.
How many jurisdictions allow same-sex marriage?
By the DOL’s count, as of February 13, 2015, 32 states1 and the District of Columbia, as well as 18 countries2
extended the right to marry to same-sex couples. However, as we’ve noted in previous bulletins, this changes
on an almost daily basis. Just this week, Alabama stayed its weeks-old decision on same-sex marriage while
a Nebraska court struck down that state’s prohibition.
What are the projected effects of this rule?
The DOL submits that there will be two employer benefits to this rule. First, it projects that the rule will
“reduc[e] barriers to the mobility of employees … in the labor market” creating a more agile workforce, not tied
to residing in a particular state. Second, in contrast to the current rule, it will “reduce[] the administrative
burden on employers that operate in more than one State, or that have employees who move between States
with different marriage recognition rules….”
1
The cited states were: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey,
New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia,
Washington, West Virginia, Wisconsin, and Wyoming.
2
The cited countries were: Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, Finland,
France, Iceland, Luxembourg, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden,
and Uruguay
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In terms of quantifying the effect, the DOL proposes that this will create “8,202 new instances of FMLA leave
annually” across all U.S. employers of which 6,222 will be for caring for a spouse with a serious health
condition. In addition, they estimate the added cost of maintaining employer-provided health insurance
benefits to be $5,391,078 per year across all employers.
Can employers require documentation?
The DOL did not modify the ability of the employer to confirm the family relationship, nor did it change the
base template forms (e.g., WH-380). However, it did reiterate that under the current rule—that an employer
may require “either a simple statement asserting that the requisite family relationship exists, or
documentation”—it “is the employee's choice whether to provide a simple statement or another type of
documentation [and] in all cases, a simple statement of family relationship is sufficient….”
Our Comment
We had been waiting on this change for over a year (well before the June proposed rule), so at this point, the
change was overdue. We agree that this will ease the administrative burden on employers, although several
state FMLAs still have different delineations for marriage and domestic partnership (both same-sex and
opposite-sex) further complicating matters. Finally, with regard to the documentation standard, employers
should be wary of potential discrimination by requiring documentation for same-sex marriages if they do not
also require such proof of opposite-sex marriages.
For current customers, if you have any questions or concerns, please contact your account manager. If you
are not an FMLASource customer, but would like further information, please contact us at (800) 851-1714 or
[email protected].
© 2015 ComPsych Corporation. All rights reserved. This information is for educational purposes only.
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