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DOL Revises Definition of “Spouse” Under FMLA

FMLA -- Definition of ''Spouse''

Today, the Department of Labor issued a Final Rule revising the regulatory definition of “spouse” under the Family Medical Leave Act (FMLA).  Under the new rule, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.1The FMLA entitles eligible employees of covered employers to take unpaid leave for specified family and medical reasons.  A covered employer is a private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year; a public agency; or a public or private elementary or secondary school.  In some ways, this is a fairly incremental change: After a 2013 Supreme Court ruling, the FMLA regulations were updated so that eligible employees could take FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriages.  With today’s new rule, the regulatory definition of spouse under the FMLA is amended, so eligible employees can take FMLA leave to care for a same-sex spouse, regardless of where they live (so long as the jurisdiction in which the marriage was entered into recognizes same-sex marriages).  But that’s not to minimize the significance of the regulatory change; now, even employers in states that do not recognize same sex marriages still must carefully consider whether employees in same sex marriages are entitled to FMLA spousal leave, because of the new “place of celebration” rule.  The Final Rule is effective on March 27, 2015.  Employers should consult with counsel to ensure that their policies comply with this important change in the law.

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