UPDATE: A March 26, 2015 decision by Judge Reed O’Connor from the U.S. District Court in Texas temporarily blocked the new rule defining “spouse” for purposes of leave under the FMLA. Judge O’Connor’s decision only temporarily halts the FMLA’s “state of celebration” rule in the states, pending a requested hearing on April 13, 2015. Any future decision by the judge will most likely be affected by four cases currently pending before U.S. Supreme Court.

On February 25, 2015, the United States Department of Labor (DOL) adopted new regulations that define the term “spouse” for purposes of the Family and Medical Leave Act of 1993 (FMLA). Under the regulations, which took effect on March 27, 2015, the term “spouse” includes all individuals in same-sex and opposite-sex marriages, without regard to whether the States in which those individuals reside and work recognize same-sex marriage.

This article describes the evolution of the DOL’s new regulation and discusses steps employers should take to ensure that they do not run afoul of the FMLA.

Background

On June 26, 2013, the United States Supreme Court issued its opinion in United States v. Windsor, finding that a key provision of the federal Defense of Marriage Act (“DOMA”) was unconstitutional. Specifically, Section 3 of DOMA defined “marriage” to include only a legal union between and man and a woman.

That provision also defined the term “spouse” to include only a “person of the opposite sex who is a husband or a wife.” The Court struck down this provision of DOMA, concluding that these definitions violated the due process and equal protection clauses of the United States Constitution.

Windsor has had significant impacts. As a result of Windsor, individuals in same-sex marriages gained access to federal benefits and protections that previously were available only to individuals in opposite-sex marriages. These benefits consist of tax, military, immigration, and federal employment benefits, including FMLA benefits for eligible employees.

The FMLA is the principal federal law that provides job-protected leave to certain employees who must be absent from work to address their own or certain family members’ serious health conditions, to care for family members who are members of the United States military, or to address emergencies related to family members’ military service. Among those family members whose medical conditions or military service might entitle an employee to job-protected leave is the employee’s spouse, who the statute defines as “a husband or wife, as the case may be.”

The DOL periodically has utilized its rule-making authority to interpret the term “spouse.” The first regulations interpreting the FMLA included the following the definition: “Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

Notably, these regulations were issued before DOMA was enacted, but the effect of DOMA was to limit FMLA leave based on a spousal relationship between individuals in opposite-sex marriages.

Shortly after the Windsor opinion, the DOL issued guidance on the definition of “spouse” under the FMLA, which indicated that eligible employees in a same-sex marriage who reside in a state that recognizes their marriage may take FMLA leave to attend to spousal medical and other needs.

With the DOL’s new regulations about to go into effect, however, an updated rule will define who is a “spouse” for purposes of the FMLA. The new regulations align DOL with other federal agencies that have declared the determination of who counts as a “spouse” for federal benefits entitlement will be based upon the law of the state in which a marriage is celebrated, rather than the state in which the individuals seeking benefits reside.

As a result, beginning on March 27, 2015, eligible employees who have been married in States that recognize same-sex marriages are entitled to utilize FMLA leave for spousal purposes whether or not the states in which those employees reside or work also recognize same-sex marriages.

Do’s And don’ts under the DOL’s new regulations

Although the DOL’s new definition of “spouse” will expand the number of employees who may utilize FMLA leave to address a spouse’s health or military duty issues, it is unlikely to cause a sea-change in FMLA leave. Spousal FMLA leave remains available only to individuals who are lawfully married; it does not apply to individuals in domestic partnerships or civil unions.

As a practical matter, however, many employers already extend FMLA rights to individuals in same-sex marriages or domestic partnerships without regard to the legality of same-sex marriage.

Nonetheless, as FMLA entitlements change, employers must take care to ensure that the FMLA is administered in accordance with the DOL’s new definition of “spouse.” One simple way to ensure that employees and management, alike, understand the implications of this new definition is to incorporate into an existing FMLA policy a definition for “spouse,” which explains that FMLA leave for spousal purposes is available to eligible employees who have been lawfully married in any jurisdiction.

Additionally, employers should clearly explain the manner in which employees may request leave to care for a spouse and the types of documentation that will be required for a FMLA leave to be approved.

Notably, the FMLA permits employers to obtain reasonable documentation of a spousal relationship. In obtaining such documentation, employers should take care to ensure that FMLA programs are administered in an equitable, non-discriminatory manner.

Especially in those jurisdictions that have enacted protections for employees based upon sexual orientation, employers that request documentation of a spousal relationship should do so with all employees, regardless of whether the spouse at issue is same-sex or opposite-sex.