New Definition of "Spouse" Under the FMLA Extends Rights to Employees in Legal Same-Sex Marriages

In light of the United States Supreme Court's decision in United States v. Windsor, which found the Defense of Marriage Act (DOMA) to be unconstitutional, the Department of Labor announced on February 23, 2015 that the definition of "spouse" under the Family and Medical Leave Act (FMLA) will be revised to include employees in legal same-sex marriages regardless of where they live. Under DOMA, a spouse is defined as "a person of the opposite sex who is a husband or wife." 1 U.S.C. § 7. In Windsor, the Court found excluding same-sex couples in lawful marriages was a violation of equal protection under the Fifth Amendment of the Constitution.

Accordingly, the definition of "spouse" under the FMLA, which entitles eligible employees of covered employers to take job-protected, unpaid leave for certain family and medical reasons, now includes "an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages, or (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State." The rule shifts the focus from where the employee resides to where the marriage was celebrated. Thus, employers operating in states where same-sex marriage is not legal are not precluded from having to provide job-protected, unpaid leave to an employee in a same-sex marriage if the employee meets the new statutory definition of "spouse" under the FMLA.

The new definition of "spouse" will be effective on March 27, 2015.

If you have any questions regarding the content of this alert, please contact Amanda J. MacDonald at amacdonald@clarkhill.com | (412) 394-2507 or another member of Clark Hill's Labor & Employment Law practice group.