New FMLA Regulations Expand the Definition of Spouse to Include Same-Sex Marriages

Rules governing family medical leave for gay couples will soon reflect the rapid changes sweeping the nation. Since the Supreme Court’s 2013 decision in United States v. Windsor, 133 S.Ct. 2675 (2013) courts across the nation have unraveled gay marriage bans in rapid succession, with marriage equality the law of the land in 37 states as of March 1, 2015. Despite the attention to gay marriage bans since Windsor, other large changes have been relatively unreported, such as federal regulations governing same-sex couples. This changed on February 25, 2015.

By way of brief background, Windsor’s central holding made unconstitutional Section 3 of the Defense of Marriage Act (“DOMA”), which had previously mandated that all federal laws regarding marriage exclude same-sex marriages even when those marriages were legally valid in the couple’s home state. Windsor upended this edict; now, federal agencies must revise regulations governing spousal benefits to recognize same-sex marriages. As a result, and in light of Windsor, President Obama also instructed federal agencies to revise all relevant federal statutes to reflect the decision.

A notable revision was to the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”), which permits employees to take unpaid leave from work to care for ill spouses, children, and other immediate family members with a continuation of group health insurance and without fear of reprisal. The law, initially passed in 1993, permits employees with at least 12 months on the job to take up to 12 weeks of unpaid leave during any 12 month period. In reality, by striking down Section 3 of DOMA, Windsor extended FMLA rights to same-sex married couples if they resided in a state that recognized same-sex marriages. However, the rights did not apply to couples living in states where same-sex marriages were not recognized, even if they were legally married in a different state.

In June 2014, the Department of Labor applied Windsor to the FMLA regulations and adopted a proposed “state of celebration” rule, which determined spousal status based on the state where the employee was legally married, and not the state where the employee resides. Thus, if a same-sex couple got married in a state that recognized same-sex marriages, they are considered to be married for federal FMLA purposes even if they live and work in a state that does not recognize same-sex marriage. In other words, the “place of celebration” rule provides that the validity of a marriage is dependent on the laws of the state in which the couple married.

On February 25, 2015, the Department of Labor went even further and issued a new final rule, stating that the definition of “spouse” is indeed determined by the state in which a marriage is entered, in conformity with its 2014 “state of celebration” proposal. The rule will now require employers, in some cases, to determine the validity of marriages by reference to the laws of states to which the employer has no connection. For example, if the state from which the couple originated has common law marriage (marriage without the necessity of binding documents at a public ceremony), then the employer would have to evaluate whether the law of that state would recognize the same-sex marriage when deciding whether to permit the leave under FMLA.

This final rule may have a tremendous impact on many employers depending on the use of the FMLA by their employees. Therefore, employers should first determine whether the FMLA applies to them. If it does, they should train “leave” administrators and supervisors on the new rule, making sure that they understand their new responsibilities. Employers should also review and amend FMLA policies and procedures, as well as all relevant FMLA forms and notices, to reflect the new rule.

If you or your institution has questions or concerns about this topic and you would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at 516-357-3750.

Thank you to Nathan Boone and Lauren Dwarika, interns at Cullen and Dykman, for their assistance with this blog post.