March 24, 2015 New Rule Amending FMLA Definition of “Spouse”
KEEPING YOU INFORMED…
Sometimes an issue arises about who is a “spouse” for purposes of entitlement to leave pursuant to the Family Medical Leave Act of 1993 (FMLA). Moving from a “State of residence” rule to a “place of celebration” rule, the U.S. Department of Labor recently adopted a rule amending the regulatory definition of “spouse” that looks to the law of the place into which the marriage was entered, as opposed to the law of the State in which the employee resides. The definition now specifically includes individuals who, regardless of their residence, are in same- sex or common law marriages that were entered into in a State that legally recognizes them. The definition also includes a husband or wife in a marriage that was validly entered into outside of the United States, provided that it could have been entered into in at least one State. The rule will take effect on March 27, 2015.
Specifically, eligible employees in legal same-sex or common law marriages will be permitted to take unpaid, job-protected FMLA leave to care for their same-sex or common law spouse, regardless of where they live, in the following situations:
- When needed to care for their same-sex or common law spouse due to the spouse’s serious health condition;
- When the employee’s same-sex or common law spouse is involved in certain military duty or has been notified of an impending call or order to covered active duty; and
- When the employee is needed to care for a same-sex or common law spouse who is a covered military service member with a serious illness or injury.
In addition, an employee in a legal same-sex or common law marriage, regardless of the State in which the employee resides, will no longer need to establish the requirements for in loco parentis for their spouse’s child (the employee’s stepchild) in order to take leave to care for the child. Likewise, when an eligible employee’s parent has a same-sex or common law spouse, the employee will be able to take FMLA leave to care for the stepparent (the employee’s parent’s same-sex or common law spouse), regardless of whether the stepparent ever stood in loco parentis to the employee.
Since all legally married couples, whether opposite-sex or same-sex, will have consistent FMLA leave rights regardless of where they live, we recommend that you review your FMLA policies and procedures to ensure compliance with the newly expanded definition of “spouse.” We are available to assist you with this and any related questions that you may have regarding the implications of the new rule.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015
1. We do not believe that the new rule will significantly impact the administration of FMLA leave by employers in New York. Pursuant to New York’s long-standing “marriage recognition” rule, marriages legally entered into outside of New York have been recognized unless they are contrary to the prohibitions of natural law or the express prohibitions of a statute. For instance, while New York does not permit the formation of common law marriages within its borders, it has recognized common law marriages legally formed in other States. Similarly, even before the enactment of the Marriage Equality Act, New York recognized same-sex marriages legally entered into in other States.