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Employer’s Corner: Definition of spouse revised under Family and Medical Leave Act

The Family and Medical Leave Act entitles covered employees of covered employers up to 12 work weeks of unpaid, job-protected leave for specified reasons related to family, medical and military caregiver provisions. The purpose of this leave, according to the U.S. Department of Labor, is to allow employees “to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons.”

On Feb. 25, the Department of Labor issued a final rule revising the regulatory definition of spouse under the Family and Medical Leave Act of 1993.

Effective March 27, the new rule amends the definition so eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member regardless of where they live.

The U.S. Department of Labor’s website states that “This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.”

The federal Department of Labor identifies two major features of the new rule. First, “(t)he Department has moved from a ‘state of residence’ rule to a ‘place of celebration’ rule for the definition of spouse under the FMLA regulations. The final rule changes the regulatory definition of spouse ... to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A 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.”

Second, “(t)he final rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.”

What does this mean for employers? The first step is that employers should determine whether they are covered employers for purposes of the Family and Medical Leave Act. Second, employers who are covered will need to update and revise their family and medical leave policies to ensure they reflect the latest revisions as well as update their human resources professionals to ensure they are complying with the new rule.

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