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United States Department of Labor Redefines "Spouse" Under FMLA

June 2014

By: Phoebe A. Taurick, Esq.

On Monday, June 23, 2014 the U. S. Department of Labor (DOL) proposed a new definition of "spouse" as that term is used for purposes of the Family and Medical Leave Act (FMLA). The FMLA extends protected leave to employees to care for a "spouse" with a serious health condition and in certain circumstances arising out of a spouse's military service. However, the definition of "spouse" has been blurred in recent years. Last fall the Supreme Court struck down the Defense of Marriage Act (DOMA) as unconstitutional - which, until that decision, had prohibited the federal government from recognizing same-sex marriages. Meanwhile, many states have passed new laws legitimizing same-sex marriages where they were not previously recognized. The new proposed rule purports to take these developments into account with respect to FMLA leaves that are to be used for spouses; however, the issue remains somewhat complicated by the fact that not all states recognize same-sex marriages and in other states, spouses can be defined by common law.

Currently, for purposes of the FMLA, the term "spouse" is defined by the state in which the employee lives. Under this interpretation an otherwise eligible employee residing in a state that recognizes same-sex marriage is afforded the protections of the FMLA for a covered leave in connection with his or her spouse. The same would not hold true for couples residing in a state which does not recognize same-sex marriages, even if they were legally married in another state or jurisdiction. The proposed rule, however, would define a "spouse" as recognized by the place of celebration-if a couple was legally married in a state that recognizes same-sex marriages they would be protected under the FMLA, regardless of where they currently live.

The proposed rule is consistent with the government's existing interpretation of several federal laws, including ERISA and the United States Tax Code, where marital status of same-sex couples is already determined based on the place of celebration and not current domicile. Therefore, it is highly likely that the DOL's proposed rule for the FMLA will become a final rule in the coming months. The DOL is taking comments on its proposed rule, until August 22, 2014.

Unless they already have done so, employers must now determine whether to wait until the DOL's proposed rule becomes final or begin recognizing same-sex partners for purposes of leave under the FMLA regardless of their state of residence. This is no small issue, at least in states that have not recognized same-sex marriage under their laws. The unsettled state of the law in this area leaves employers exposed to legal challenges regardless of what they do. Employers who do not provide FMLA leave to same-sex spouses based on the law of an employee's state of residence run the risk of a court ruling against their position, as the Supreme Court did when declaring DOMA unconstitutional. On the other hand employers who extend FMLA benefits to same-sex couples in states that do not currently recognize such marriages may be accused of unlawfully counting non-FMLA leave towards an employee's allotment of 12 weeks per year.

When finalized and implemented later this year, the new DOL regulation should provide employers with clear guidance on how to handle the seemingly simple question: "Who is a spouse, for purposes of the FMLA leave?"

For questions regarding spousal or other types of leave under the FMLA, contact attorney Phoebe Taurick in our Minneapolis office, at (952) 746-1700, or email her at phtaurick@wesselssherman.com.