Another Shoe Falls: DOL Issues Regulations Redefining Who is a "Spouse" for Purposes of FMLA

Following the Supreme Court's Decision in U.S. v. Windsor which invalidated Section 3 of the Defense of Marriage Act ("DOMA"), federal agencies scoured their enabling legislation to ensure that many Federal benefits and statutory protections were extended to same-sex couples.

The Department of Labor issued its Final Rule, effective March 27, 2015 implementing a "state of celebration" rule for the definition of a "spouse" for eligibility for leave under the Family and Medical Leave Act ("FMLA").  The regulations require an employer to look to the law of the place where the marriage was entered into, instead of the law of the state in which the employee resides.  29 CFR §§825.102 and 825.122(b).   This new definition of "spouse" under the Final Rule includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

The Department of Labor Fact Sheet on these changes is here.