DOL clarifies definition of spouse under FMLA

The U.S. Department of Labor (DOL) recently released a final rule that redefines who qualifies as a spouse under the Family and Medical Leave Act (FMLA). The new rule specifically says marriage is defined by state law where the marriage was entered into, including states where common law and same-sex marriages are recognized.

Previously, the FMLA regulations stated a spouse was defined by state law where the employee resides. The revisions bring the rule into line with IRS guidance on federal income tax (IRS Revenue Ruling 2013-17) and DOL guidance on employee benefits and COBRA (Technical Release 2013-04). By specifically incorporating this standard into the FMLA regulations, the DOL removed any doubt about whether an employer must recognize a spouse from a marriage which was lawfully entered into in another state.

Tips: The FMLA rule is effective March 27, 2015. It’s highly unlikely that an employee would object to having FMLA leave protections sooner rather than later, so in most cases there’s little risk in implementing the policy early. However, if the spouses are both employed by you, then it may be best to wait until the effective date. The reason is that the FMLA allows you to limit spouses to a combined total of 12 weeks of FMLA leave within a 12-month period if the reason for leave is the birth or placement of a child, or care of a parent with a serious health condition.

You should also review your FMLA policy with your Vigilant employment attorney in case it needs to be updated in light of the new rule. See our Model Policy, “FMLA: Federal Family and Medical Leave Policy” (907).