The DOL's Marriage Proposal: Notice of Proposed Rulemaking to Redefine Spouse under the FMLA | Practical Law

The DOL's Marriage Proposal: Notice of Proposed Rulemaking to Redefine Spouse under the FMLA | Practical Law

A discussion of the US Department of Labor's (DOL) recent Notice of Proposed Rulemaking to revise the definition of spouse under the Family and Medical Leave Act (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 DOL proposed the rule change in light of the US Supreme Court's June 2013 decision in United States v. Windsor, which found that Section 3 of the Defense of Marriage Act (DOMA), limiting the definitions of "marriage" and "spouse" to opposite-sex marriages and spouses, was unconstitutional.

The DOL's Marriage Proposal: Notice of Proposed Rulemaking to Redefine Spouse under the FMLA

by Practical Law Labor & Employment
Published on 24 Jun 2014 • USA (National/Federal)
A discussion of the US Department of Labor's (DOL) recent Notice of Proposed Rulemaking to revise the definition of spouse under the Family and Medical Leave Act (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 DOL proposed the rule change in light of the US Supreme Court's June 2013 decision in United States v. Windsor, which found that Section 3 of the Defense of Marriage Act (DOMA), limiting the definitions of "marriage" and "spouse" to opposite-sex marriages and spouses, was unconstitutional.
On June 20, 2014, the US Department of Labor (DOL) announced a proposed rule to revise the definition of spouse under the Family and Medical Leave Act (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 DOL's proposal follows the US Supreme Court's June 2013 decision in United States v. Windsor (133 S. Ct. 2675 (2013)), rejecting the interpretation of "marriage" and "spouse" in the Defense of Marriage Act (DOMA) (Pub. L. 104-199, 110 Stat. 2419 (1996)). Section 3 of DOMA amended the Dictionary Act to provide a federal definition of "marriage" and "spouse" for administering and interpreting federal laws and regulations. Under DOMA, those definitions were limited to opposite-sex marriages and spouses. (1 U.S.C. § 7.) In Windsor, the Supreme Court rejected that limitation as unconstitutional (133 S. Ct. at 2693-96).
Before Windsor, because DOMA limited marriage and spouse to opposite-sex marriages and spouses, FMLA leave to care for a spouse (or spouse's parent or child) could only be taken for a spouse of the opposite sex. After Windsor, the DOL updated its public guidance to remove references to the 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).
In addition, the DOL now proposes a regulatory change that would eliminate the requirement that an employee's same-sex marriage be recognized by the state where the employee resides. The DOL proposes using a "place of celebration" rule instead of a "state of residence" rule to determine where the same-sex marriage is legally recognized. The proposed change would mean all eligible employees in legal opposite-sex, same-sex and common law marriages can take FMLA leave to care for their spouse or family member, regardless of where they live.
The DOL's proposed rule has not yet been published in the Federal Register. When published, it will specify the dates for public comment and interested parties may submit written comments concerning the proposed change.
The DOL's notice is a good reminder for employers to review their FMLA policies and practices. Practical Law has a collection of resources to help employers comply with their FMLA requirements. For more information, see these key resources: