By Susan Schoenfeld, JD
Senior Legal Editor

On March 27, 2015, the U.S. Department of Labor’s (DOL) final rule, revising the definition of “spouse” under the Family and Medical Leave Act (FMLA), will take effect. The final rule came in reaction to the U.S. Supreme Court’s June 2013 decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.

DOMA generally limited the definitions of “marriage” and “spouse” to opposite-sex marriages and spouses. As a result of the Supreme Court’s decision in the Windsor case, federal agencies began to alter the definitions of covered spouses to include same-sex marriage as covered under various federal laws.

Place of celebration

DOL’s final rule changes FMLA’s rule for determining spousal coverage from the previous “place of residence” rule to a “place of celebration” rule. Under the new place of celebration rule, employers must look to the law of the state in which the employee’s marriage was entered into, as opposed to the law of the state in which the employee resides, as was required under the old FMLA rule.

The place of celebration rule allows all legally married couples, whether opposite-sex or same-sex or married under common law, to have consistent federal family leave rights regardless of where they live.

The place of celebration rule allows eligible employees to take spousal FMLA leave for same-sex and common-law spouses to care for the spouse with a serious health condition, take qualifying exigency leave for the spouse’s covered military service, and take military caregiver leave for the same-sex spouse.

Marriages outside the United States

The final rule’s definition of spouse also expressly includes individuals in lawfully recognized same-sex and common-law marriages and marriages that were validly entered into outside of the United States, as long as the marriage is valid in the place where it was entered into, and could have been entered into in at least one state of the United States (i.e., in a state that authorizes same-sex marriages).

Domestic partnerships and civil unions

FMLA’s definition of a covered spouse requires that the employee be married. Domestic partnerships and civil unions do not constitute marriages under the FMLA; therefore, they are not protected. Common-law marriages, however, are protected if they are legally recognized in the state in which the marriage occurred.

FMLA leave to care for stepchildren and stepparents

The DOL has recognized the eligibility of employees to take leave to care for their own child or the child of the employee’s partner (whether married or not) provided the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child.

In its Fact Sheet #28B, the DOL makes it clear that an eligible employee in a legal same-sex marriage can take FMLA leave to care for his or her stepchild (i.e., the child of the employee’s same-sex spouse), provided the employee stands in loco parentis to the child. However, under the new, final FMLA rule, the employee in a legal same-sex marriage would not be required to demonstrate in loco parentis status, regardless of where the employee resides.

Under the new rule, when an eligible employee’s parent has a same-sex spouse, the employee would be able to take FMLA leave to care for his or her stepparent (the employee’s parent’s same-sex spouse), regardless of whether the stepparent ever stood in loco parentis to the employee.

Documentation of family relationship

The FMLA regulations permit employers to require employees who take leave to care for a family member to provide reasonable documentation of the family relationship. Reasonable documentation may take the form of either a simple statement from the employee or documentation such as a birth certificate or court document.

According to the DOL, it is the employee’s choic whether to provide a simple statement or another type of documentation. As a result, a simple statement of family relationship is sufficient to satisfy the employer’s request in all cases. The employer may require that the statement be in writing.

Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise the employee’s FMLA rights. Therefore, in order to avoid a claim of discrimination, employers should develop a uniform policy to require documentation (or no documentation) of family relationship, including marriage, regardless of type of marriage the employee is attempting to prove (same-sex, opposite sex, etc.) when family leave is being requested.

Finally, when an employee has already submitted proof of marriage to the employer for some other purpose, such as obtaining healthcare benefits for the employee’s spouse, the DOL says that such proof is sufficient to confirm the family relationship for purposes of FMLA leave.

What employers need to do

In order to ensure compliance with the new FMLA rule, employers should:

• Review and revise existing FMLA policies to ensure that if the term spouse is defined in the policy, the definition meets the new regulatory requirements;
• Revise existing forms or create forms to confirm family relationships consistent with the new regulatory definition (e.g., statement of familial relationship);
• Conduct training to ensure managers and HR personnel understand the new spousal leave rule and are prepared to address requests for spousal leave and apply all policies and procedures equally, regardless of the “type” of spouse for whom leave is being requested.

Sources for state law information

The preamble to the final FMLA rule assures employers that they do not need to know the marriage laws of all 50 states and all foreign countries. Rather, says the DOL, employers will only need to know the same-sex marriage laws of a specific state or country in situations where an employee has requested leave to care for a spouse, child, or parent, and the basis for the family relationship is a same-sex marriage.

When looking for information on state marriage laws, the DOL suggests these resources:

• Freedom to Marry.org
• Gay Marriage Pros and Cons

As a state law resource, BLR^® also suggests the National Council of State Legislatures