FMLA: Final Rule Changes Definition of Spouse

Employees in legal same-sex marriages will have the same rights to take leave to care for a spouse with a serious health condition under the FMLA—regardless of where they live—as those afforded to employees in opposite-sex marriages, under an amendment to the DOL’s FMLA regulations announced on Monday, February 23. Specifically, the Wage and Hour Division will issue a final rule amending its regulations at 29 CFR Part 825 to adopt a “place of celebration” provision. The rule change was admitt4ed for publication in the Federal Register on February 25 and will take effect 30 days thereafter.

The DOL has updated the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. The rule change was promulgated in keeping with the U.S. Supreme Court’s decision last year in United States v. Windsor, which struck down the federal Defense of Marriage Act (DOMA) provision interpreting “marriage” and “spouse” to be limited to opposite-sex marriage for purposes of federal law.

Place of celebration

Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

In supplementary information to the final rule, the DOL also notes that such a rule “reduces the administrative burden on employers that operate in more than one State, or that have employees who move between States with different marriage recognition rules; such employers will not have to consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.” Moreover, the place of celebration rule is consistent with interpretations adopted by other federal agencies, including the Department of Defense and the Internal Revenue Service, allowing for greater uniformity.

Employee documentation requirements

The DOL received numerous comments regarding the documentation that employers may require from employees in order to confirm a family relationship—in particular, what documentation an employer may require in order to confirm that an employee has a valid marriage. Rejecting several proposals by commenters, however, the DOL declined to modify the relevant regulation at Sec. 825.122(k), which permits employers to require employees who take leave to care for a family member to provide reasonable documentation of the family relationship.

Currently, reasonable documentation may take the form of either a simple statement from the employee that such a relationship exists, or documentation such as a birth certificate or court document. The DOL said that, in its view, that provision “adequately addresses the nature of the documentation that employers may require,” and that “in all cases, a simple statement of family relationship is sufficient under the regulation to satisfy the employer’s request.” However, the employer may require that statement to be in writing.
The DOL also said that if an employee has already submitted proof of marriage for some other purpose, such as obtaining health benefits for the spouse, “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”