Family Law

New FMLA Rule Defining “Spouse”

By June 22, 2015 June 18th, 2019 No Comments

The Family Medical Leave Act (FMLA) now requires employers governed by the FMLA to recognize valid same-sex and common-law marriages when determining spousal coverage. The definition of “spouse” under the FMLA was revised under a Department of Labor rule that became effective March 27, 2015.

A 2013 U.S. Supreme Court decision that declared a portion of the Defense of Marriage Act (DOMA) unconstitutional triggered revisions to federal laws, including the FMLA, that defined “marriage” and “spouse” as opposite-sex marriages and spouses.

Under the former FMLA, a spousal coverage is now determined based upon “place of celebration’ and not “place of residence.” Employers must follow the law of the state where the marriage took place, not where the employee resides. The new rule allows legally married couples, whether opposite-sex or same-sex, or married under common law, to have federal family leave rights no matter where they live.

Under the new rule, an eligible employee may take spousal FMLA leave to care for a same-sex spouse with a serious health condition, or leave for qualifying exigencies arising from the same-sex spouse’s covered military service, or leave to care for a stepchild of the employee’s same-sex spouse.

Only spouses who have entered into a valid marriage are covered under the new FMLA rule.

As a result of this change, employers should revise their FMLA policies and forms to conform to the new definition of the term spouse, publish the revisions to employees and educate supervisors and HR employees of the change.


The information provided in this letter is of a general nature and should not be acted upon without prior discussion with your Ohnstad Twichell, P.C., attorney.