Questions

  1. What regulatory change does the Final Rule make?
  2. When will the revised definition take effect?
  3. Why did the Department change the FMLA’s regulatory definition of spouse?
  4. Is an employee’s entitlement under the FMLA different under this new rule? Does the rule change who is an FMLA-covered employer?
  5. How does the Final Rule affect FMLA spousal leave for a same-sex spouse?
  6. How does the Final Rule affect FMLA spousal leave for an employee who is in a common law marriage?
  7. How does the Final Rule apply to eligible employees who use FMLA leave to care for a child to whom they stand in loco parentis?
  8. How does the Final Rule affect FMLA leave that is taken to care for a stepchild?
  9. How does the Final Rule affect FMLA leave that is taken to care for a stepparent?
  10. How does the Final Rule affect the limit on leave for spouses working for the same employer?
  11. How does the Final Rule affect FMLA spousal leave for an employee who entered into a same-sex marriage in a foreign country?
  12. Can employers require documentation to verify that a same-sex or common law marriage is valid?
  13. Are the other provisions of the FMLA affected by the revised definition of spouse?
  14. May employers offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA?
  15. Can eligible employees in same-sex civil unions take FMLA leave on the basis of their same-sex civil union?
  16. How does the Final Rule benefit employers?
 
 

Answers

1. Q. What regulatory change does the Final Rule make?

A. The Final Rule amends the regulatory definition of spouse under the Family and Medical Leave Act (FMLA) to include all individuals in legal marriages, regardless of where they live. More specifically, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages. The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.


2. Q. When will the revised definition take effect?

A. The Final Rule revising the regulatory definition of spouse under the FMLA, was published on February 25, 2015, and will take effect on March 27, 2015.


3. Q. Why did the Department change the FMLA’s regulatory definition of spouse?

A. The Department has made this regulatory change in light of the United States Supreme Court’s June 2013 decision in United States v. Windsor. Windsor struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Section 3 of DOMA defined spouse for purposes of federal law, which included the FMLA, as a person of the opposite sex. As a result, prior to Windsor, an employee was not entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

Following the Windsor decision, under the then-existing FMLA regulation defining spouse, eligible employees in same-sex marriages recognized in their “state of residence” could take FMLA leave to care for a same-sex spouse with a serious health condition. However, this definition did not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lived in a state that did not recognize same-sex marriage.

By looking to the law of the place where the marriage was entered into (referred to as a “place of celebration” rule) rather than the law of the employee’s state of residence, the Final Rule will ensure that all legally married employees have consistent FMLA leave rights regardless of where they live. The Department believes that this place of celebration rule will give fullest effect to the purpose of the FMLA to permit employees to take unpaid, job-protected leave to care for a spouse for an FMLA-qualifying reason. The need to care for a spouse is the same for all married couples and does not change depending on their state of residence.


4. Q. Is an employee’s entitlement under the FMLA different under this new rule? Does the rule change who is an FMLA-covered employer?

A. The new regulatory definition of spouse does not substantively alter the FMLA. It does not change, for example, the eligibility requirements or an employee’s entitlement to take up to 12 workweeks of FMLA leave in a 12-month period or what types of employers are covered by the FMLA. (see Fact Sheet #28) The Final Rule makes FMLA leave available to all eligible employees who are legally married, regardless of where they live.


5. Q. How does the Final Rule affect FMLA spousal leave for a same-sex spouse?

A. The Final Rule newly provides eligible employees the opportunity to take FMLA leave to care for their lawfully wed same-sex spouse, regardless of where they live, when

With respect to the FMLA’s military family leave provisions, the place of celebration rule is consistent with the Department of Defense’s (DOD) policy of treating all lawfully married members of the military equally. In administering its policy, DOD looks to the place of celebration to determine if a military member is in a valid marriage.


6. Q. How does the Final Rule affect FMLA spousal leave for an employee who is in a common law marriage?

A. The revised regulatory definition of spouse encompasses a husband or wife in a common law marriage as long as the common law marriage was validly entered into in a state that permits the formation of common law marriages, regardless of the state in which the employee currently resides.


7. Q. How does the Final Rule apply to eligible employees who use FMLA leave to care for a child to whom they stand in loco parentis?

A. The Department has consistently recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (For more information on FMLA leave on the basis of an in loco parentis relationship, see Fact Sheet #28B.) This Final Rule has no impact on the standards for determining the existence of an in loco parentis relationship (see Administrator’s Interpretation FMLA 2010-3 (June 22, 2010)).


8. Q. How does the Final Rule affect FMLA leave that is taken to care for a stepchild?

A. Under the new rule, an eligible employee in a legal same-sex or common law marriage can take FMLA leave to care for his or her stepchild regardless of whether the employee stands in loco parentis to the stepchild. This Final Rule has no impact on the standards for determining the existence of an in loco parentis relationship (see Administrator’s Interpretation FMLA 2010-3 (June 22, 2010)). Rather, the place of celebration rule means that employees in same-sex marriages, regardless of the state in which they reside, do not need to establish the requirements for in loco parentis for their spouse’s child (the employee’s stepchild) in order to take leave to care for the child. Only one type of relationship need apply for an employee to satisfy the requisite family relationship under the FMLA. Thus, the place of celebration rule expands the basis for an employee to take leave to care for a child.


9. Q. How does the Final Rule affect FMLA leave that is taken to care for a stepparent?

A. Under the new rule, when an eligible employee’s parent has a same-sex spouse, the employee would be able to take FMLA leave to care for his or her stepparent (the employee’s parent’s same-sex spouse), regardless of whether the stepparent ever stood in loco parentis to the employee.

For more information on FMLA leave on the basis of an in loco parentis relationship, see Fact Sheet #28B.


10. Q. How does the Final Rule affect the limit on leave for spouses working for the same employer?

A. The limitation on leave for spouses working for the same employer applies to all spouses who work for the same employer, including spouses in same-sex and common law marriages, as defined by the Final Rule.


11. Q. How does the Final Rule affect FMLA spousal leave for an employee who entered into a same-sex marriage in a foreign country?

A. The revised regulatory definition of spouse encompasses individuals in a same-sex marriage entered into outside of the United States as long as the marriage is valid in the place where it was entered into, and could have been entered into in at least one state of the United States (i.e., in a state that authorizes same-sex marriages).


12. Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the regulation at 29 C.F.R. § 825.122(k) permitting employers to require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy such a requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. It is the employee’s choice whether to provide a simple statement or another type of document. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.


13. Q. Are the other provisions of the FMLA affected by the revised definition of spouse?

A. The revised regulatory definition of spouse does not change the other provisions under the FMLA. For instance, all requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must be met.


14. Q. May employers offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA?

Yes. An employer may offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. See 29 C.F.R. § 825.700(a).

FMLA regulations state: “[N]othing in the Act is intended to discourage employers from adopting or retaining more generous leave policies.'' 29 C.F.R. § 825.700(b).


15. Q. Can eligible employees in same-sex civil unions take FMLA leave on the basis of their same-sex civil union?

A. Civil unions are not considered marriages under the FMLA. Therefore, employees in same-sex civil unions, as well as opposite-sex civil unions, are not guaranteed the right to take FMLA spousal leave nor do they have other protections of the Act, including from retaliation. As noted above, an employer may offer an employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA, including voluntarily offering other types of leave for couples in civil unions. In addition, eligible employees in civil unions can take FMLA leave for their own serious health condition, for the birth of a child or the placement of a child for adoption or foster care and for bonding, to care for their child or parent with a serious health condition, and for qualifying military family leave reasons.


16. Q. How does the Final Rule benefit employers?

A. The Department expects that the new rule’s definitional change will reduce the administrative burden on employers that operate in more than one state, or that have employees who move between states with different marriage recognition rules. Such employers will not have to consider the laws of the employee’s state of residence in determining the employee’s ability to take FMLA leave.