On February 23, 2015, the U.S. Department of Labor (DOL) issued Final Rule changes (RIN 1235-AA09) altering the definition of “spouse” under the Family Medical Leave Act (FMLA) and published the new definition in the Federal Register on February 25, 2015 (80 Fed. Reg. 10,162). The new rule will take effect in 30 days. The rule change will allow same-sex spouses to take job-protected leave to care for a seriously ill spouse even in a state that does not recognize same-sex marriages as long as they were legally married in a state where same-sex marriage is legal. Prior to this rule change, same-sex spouses were only protected under FMLA if they resided in a state that recognized same-sex marriages. At least 37 jurisdictions currently recognize same-sex marriage.
The DOL changed the spouse definition thereby enhancing FMLA coverage to comply with United States v. Windsor, 133 S. Ct. 2675 (2013), where the Supreme Court struck down Section 3 of the Defense of Marriage Act provision defining “marriage” and “spouse” as limited to opposite-sex marriage under federal law.
The Final Rule changes the definition of “spouse” from “state of residence” to “place of celebration.” 29 C.F.R. §825.102 and §825.122(b). By doing this, to qualify for FMLA coverage, the marriage must have taken place in a state where same-sex marriage is legal, but can be enforced in any state, regardless of whether the state recognizes same-sex marriage. The DOL explained in its Final Rule publication that it made this change to ensure that all legally married couples will have consistent federal family leave rights regardless of where they live. Another goal of the rule change was to assist multi-state employers to have streamlined FMLA procedures.
While this change does not materially alter existing practices in states where same-sex marriage is recognized, it does have implications for employers in states that do not currently recognize same-sex marriage. The rule change does not alter the regulation which permits employers to require employees to provide reasonable documentation confirming the marital relation and that the couple was lawfully married. However, the DOL does advise that employers may not request confirmation of the marital relationship in a manner that interferes with an employee’s attempt to exercise FMLA rights.
As with all FMLA provisions, the Rule Change is applicable to both private sector employers with 50 or more employees, and public sector employers regardless of the number of employees. While Illinois protected same-sex spouse leave under FMLA since the recognition of same-sex marriage in Illinois on June 1, 2014, there is no separate state equivalent for medical leave that provides this protection to same-sex couples. Employers should check and update their FMLA policies accordingly to ensure consistency with the new regulation change.
Laura Platt is an associate licensed to practice in Illinois and Wisconsin and works both in the firm's Libertyville and Milwaukee offices. She focuses her practice on medical malpractice defense, insurance defense and employment law.