U.S. Department of Labor Issues New Regulations to Revise FMLA Definition of “Spouse”

By: Lisa M. Schonbeck, Esq. 

On February 25, 2015, the Department of Labor’s Wage and Hour Division (the “DOL”) issued a Final Rule to revise the regulatory definition of “spouse” under the Family and Medical Leave Act (the “FMLA”).

The DOL’s revised definition comes in response to the U.S. Supreme Court’s decision in United States v. Windsor, in which the Court held that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional. Section 3 of DOMA defined “spouse” as “only [a] person of the opposite sex who is a husband or wife.”


Under the FMLA, eligible employees of covered employers are entitled to take job-protected leave for qualifying events, including but not limited to caring for a spouse who is suffering from a serious health condition, or to care for a spouse who is a covered servicemember with a serious illness or injury, or for a qualifying exigency related to the military service of a spouse.

While the definition of “spouse” under the FMLA was initially dictated by the law of the state in which the employee resided pursuant to implementing regulations issued by the DOL, the enactment of DOMA limited the definition to a person of the opposite sex who is a husband or wife. This meant that eligible employees could not take FMLA leave to care for a same-sex spouse, regardless of whether the marriage was lawfully contracted under applicable state law.

However, the Supreme Court’s decision in United States v. Windsor now allows the DOL to recognize same-sex marriage as a basis for spousal leave under the FMLA.

New Definition of “Spouse”

The new regulations include a broader definition of “spouse,” thus expanding the availability of FMLA leave to individuals in lawful same-sex or common law marriages, regardless of the employee’s state of residence. Under the Final Rule, the term “spouse” is defined, for purposes of FMLA leave as: “a husband or wife[,]” which terms refer “to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either: (1) Was entered into in a State that recognizes such marriages; or (2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.”

The revised definition makes clear that the definition in Section 3 of the Defense of Marriage Act no longer applies. It also revises the previous DOL definition, which relied on the law of the state in which the employee resided, to include the law of the state where the employee’s marriage is entered into (the “place of celebration”). Therefore, as long as the employee was married in a state that recognizes same-sex marriage, the employee’s same-sex spouse will fall within the definition of “spouse” under the FMLA even if the employee lives and works in a state that does not recognize same-sex marriages.

Impact on Employers

Employers should become familiar with the various state laws regarding same-sex marriage in each state in which they operate as such information will dictate the administration of spousal leave under the FMLA. Employers should also review and revise their FMLA policies to ensure that any definitions contained therein reflect the definitions in the revised regulations. The new regulations are effective March 27, 2015.

Leech Tishman’s Employment Practice Group is available to discuss with you the revised FMLA regulations and has experience drafting and revising FMLA and other employment policies, as well as all employment issues affecting employers.

Lisa M. Schonbeck is a Partner in the Employment and Litigation Practice Group. She is based in the Pittsburgh office. Lisa can be reached at 412.261.1600 or lschonbeck@leechtishman.com.

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