March 18, 2015
The Department of Labor recently published its final rule amending the definition of “spouse” in the Family Medical Leave Act ("FMLA") regulations to include eligible employees in legal same-sex marriages. Beginning on March 27, 2015, same-sex spouses will be covered under the FMLA if the employee was legally married under the law of any state, regardless of the employee’s state of residency.

The Department of Labor has adopted a “state of celebration” rule, looking to the location where the employee’s marriage took place. For employers, this change in the regulations means that employers with employees at facilities in states that do not currently recognize same sex marriages may still have employees who are legally in same sex marriages and entitled to take advantage of the rights provided to employees under the FMLA. This change will provide eligible employees in lawful same-sex marriages with:
  • FMLA leave to care for a spouse with a serious health condition;
  • Qualifying exigency leave due to a spouse’s covered military service; or
  • Military caregiver leave for a spouse.
Under the amended rule, an eligible employee will qualify for FMLA leave for childcare (a child of the employee’s same-sex spouse), as well as for a parent of a same-sex spouse.  Employers should review and revise their FMLA policies to ensure that leave rights are extended to all lawfully married same-sex couples by March 27, 2015.

A complete copy of the final rule may be found here. For more information on this final rule or how it may impact your business, please contact the authors or your Polsinelli attorney.