On February 25, 2015, the DOL published its Final Rule to revise the definition of spouse under the FMLA so that eligible employees in legal same-sex and common law marriages can take FMLA leave to care for their spouse or family member, regardless of where they live. The regulation is effective March 27, 2015.

The DOL has moved from a "state of residence" rule to a rule based on where the marriage was entered into ("place of celebration") to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.

Under the place of celebration rule, eligibility for FMLA leave to care for a spouse with a serious medical condition will now depend on the law of the state in which the marriage took place. Previously, the definition of "spouse" based on the state of residence rule meant that legally married same-sex couples who resided in a state that did not recognize same-sex marriage were not treated as spouses under the FMLA. Now, a same-sex couple that is legally married but has moved to a state that does not recognize same-sex marriage will nevertheless enjoy the same rights under the FMLA as other legally married couples.

The revised definition of spouse also will have employee benefits implications. For example, employers must maintain any pre-existing group health plan coverage for an employee on FMLA-protected leave (such as to care for a same-sex spouse with a serious medical condition) under the same conditions that would apply if the employee had not taken leave.

The new rule is intended to bring FMLA regulations in sync with the US Supreme Court's ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act limiting marriage to opposite-sex couples (133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013)). Following the Supreme Court's decision in Windsor, the DOL updated its public guidance to remove references to the Defense of Marriage Act (DOMA) restrictions and to expressly state that the FMLA's definition of spouse is no longer limited to opposite-sex marriages and spouses (see DOL: Wage and Hour Division Fact Sheet #28F).

For more information, see Legal Update, The DOL's Marriage Proposal: Notice of Proposed Rulemaking to Redefine Spouse under the FMLA. For more on Windsor, see Legal Update, Supreme Court: DOMA Section 3 is Unconstitutional and Proposition 8 Proponents Lack Standing.