New FMLA Rule Defining “Spouse” Based on Marriage “Place of Celebration” Rather Than Employee’s “State of Residence”

Same-Sex-CouplesOn February 25, 2015, the Department of Labor published updated FMLA rules pursuant to which employees in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act (FMLA).

Originally enacted in 1993, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition.

This rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. The new rules are effective March 27, 2015.  Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into.

This “place of celebration” rule brings FMLA into alignment with the rules applicable to qualified retirement plans since the Supreme Court’s Windsor decision in 2013.

We recommend that employers review and update their FMLA policies to ensure compliance with the new rules.  In addition, while it is still theoretically permissible for employers to use a different definition of “spouse” for purposes of welfare benefit plans, such as medical, dental, life, and disability (because ERISA does not require spousal coverage under those plans), we recommend that employers seriously consider aligning their definition of “spouse” for all purposes.

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Author: Erwin Kratz

Erwin Kratz practices exclusively in the areas of ERISA and employee benefits law, focusing on tax and regulatory matters relating to qualified and nonqualified deferred compensation and welfare benefits.

3 thoughts on “New FMLA Rule Defining “Spouse” Based on Marriage “Place of Celebration” Rather Than Employee’s “State of Residence””

  1. Update:

    On March 26, 2015, the United States District Court for the Northern District of Texas granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction ordering the Department of Labor to stay enforcement of the Final Rule. The Court reasoned that Congress did not intend, when it enacted the FMLA, to prevent the states from defining marriage and granting the rights and benefits that accompany marriage. “Thus, Congress could not have delegated to the Department the power to define marriage in a way as to override the laws of states prohibiting same-sex marriages.”

    The DOL informed the Court on March 31 that it intends to apply the preliminary injunction only “against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity”. In other words, the DOL’s position is that the preliminary injunction does not prevent it from applying the new rule with respect to any other states that do not recognize same sex marriage, and does not prevent it from applying the new rule with respect to private employers in any state (because they were not parties to the litigation.
    A hearing on this position has been set for April 10th.

    Court decision granting preliminary injunction

    The DOL March 31 court filing

  2. On April 10, the court declined the U.S. Department of Labor’s request to dissolve its preliminary injunction preventing enforcement of its revisions to the Family Medical Leave Act (FMLA) from taking effect. So the injunction remains in effect in the states of Texas, Arkansas, Louisiana and Nebraska. See the Texas Attorney General’s Press Release here
    In the meantime, the DOL intends to continue enforcing the new rules in the rest of the states not covered by the injunction. This makes it potentially difficult for employers with employees both in and outside the states covered by the injunction to comply with the law. If you are in that predicament, talk to your employment counsel.

  3. And finally, on June 26, 2015 the district court dissolved the preliminary injunction in light of the Supreme Court’s decision in Obergefell, et al. v. Hodges. The DOL’s new “Place of Celebration” rule is therefore in full effect.

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