DOL Issues Proposed Rule Changing Definition of “Spouse,” Comments Due by August 22, 2014

The U.S. Department of Labor has issued its proposed rule changing the definition of “spouse” under the Family and Medical Leave Act (FMLA). This change was necessary following the U.S. Supreme Court’s Windsor decision in June 2013, invalidating the portion of the federal Defense of Marriage Act that made same-sex spouses ineligible for federal benefits.

The proposed rule would change the current FMLA regulations to allow eligible employees to take leave to care for their same-sex spouses if they were legally married in a state or country recognizing same-sex marriage. The employee could take this leave even if the state that the employee resides in does not recognize same-sex marriage. The rule would also allow employees to take leave to care for their same-sex spouse’s child without having to meet the in loco parentis test or to care for their parent’s same-sex spouse.  In addition, employees would be able to take qualifying exigency leave because of their same-sex spouse’s covered military service or military caregiver leave for their same-sex spouse.

If adopted, this conversion from a “place of residence” rule to a “place of celebration” rule will mean big changes for employers in states not recognizing same-sex marriages, such as Arizona, Colorado, and Wyoming.

The rule would allow Colorado employers covered by the Colorado Family Care Act to run that leave concurrently with federal FMLA leave for employees who are legally married to their same-sex partners. However, the rule would make no changes for employees in civil unions or domestic partnerships.

Click here to view information on the DOL’s Notice of Proposed Rulemaking. The full text of the proposed rule was published in the Federal Register today and is available here. Interested parties have until August 22, 2014 to submit comments.