FMLA Rights for Same-Sex and Common-Law Spouses Expanded


By: Amy Combs Bender

This week, on March 27, 2015, a Final Rule issued by the Department of Labor will take effect expanding the Family and Medical Leave Act’s protections provided to same-sex and common-law marriages. As background, the FMLA permits employees to take unpaid leave related to a spouse in the following circumstances: to care for a spouse with a serious health condition, to take qualifying exigency leave due to the spouse’s covered military service, and to care for a spouse who is a covered servicemember with a serious illness or injury.

Under the current FMLA regulations, the term “spouse” means a husband or wife as defined or recognized under the law of the state where the employee resides (including common-law marriage in states where it is recognized). In fact, since 2013 (when the United States Supreme Court held that section 3 of the Defense of Marriage Act, defining marriage as only a legal union between one man and one woman as husband and wife and a spouse as only a person of the opposite sex who is a husband or wife, was unconstitutional), the FMLA’s protections have been extended to spouses in same-sex marriages if the state where the employee lives recognizes that marriage. The practical impact of this definition was that, if an employee entered into a legal same-sex or common-law marriage in one state, but then moved to another state that did not recognize that marriage, the employee’s partner no longer was considered a “spouse” under the FMLA, which prevented the employee from being eligible for the relevant leave provisions for spouses.

The revised regulation, however, defines a spouse according to the place of celebration (in other words, the state where the marriage occurred). This effectively expands the FMLA’s protections to all legally married eligible employees (including those in legal same-sex or common-law marriages) regardless of where they live. This definition also encompasses marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

Although no other FMLA regulations were amended, another practical effect of the change in the definition of “spouse” is that eligible employees in legal same-sex or common-law marriages now are entitled to care for a stepchild (a child of the employee’s same-sex or common-law spouse) regardless of whether the employee has day-to-day responsibilities to care for and financially support the child (which the FMLA deems standing “in loco parentis”). Likewise, eligible employees may take FMLA leave to care for a stepparent who is a common-law or same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee. In addition, if the employee’s same-sex or common-law spouse works for the same employer, the FMLA’s limitation on the amount of leave available for two spouses working for the same employer applies. Also, as is the case under the current regulations, an employer may require an employee to provide documentation of the same-sex or common-law marriage under the Final Rule.

Currently, the following states recognize same-sex marriage: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

If you need guidance in implementing FMLA leave for your employees in light of this change or would like assistance in reviewing any aspect of your FMLA policy or practices, please contact one of FMG’s Labor and Employment attorneys.