Ripples of Windsor: DOL Seeking to Expand the FMLA’s Definition of “Spouse”

By on June 27, 2014

Last June, the Supreme Court of the United States struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional in United States v. Windsor, 570 U.S. 12 (2013). The Supremes ruled that section 3 of DOMA violated the Due Process Clause of the Fifth Amendment because it limited the interpretation of “marriage” and “spouse” to apply only to heterosexual unions.

As part of a broader effort to bring existing federal statutes in line with the high court’s ruling in Windsor, the Department of Labor (“DOL”) has proposed expanding the definition of “spouse” in the Family and Medical and Leave Act (“FMLA” or the “Act”.) Enacted in 1993, the FMLA allows eligible employees of employers covered by the law to take up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons such as the birth of a child, placement of a child for adoption or foster care, having to care for a spouse, parent, son or daughter with a serious health condition, or where the employee cannot perform the job because of his or her own serious health condition.

The FMLA has been expanded in the past requiring employers to give employees FMLA leave under more and more circumstances. For instance, the definition of “serious health condition” was broadened. More recently, the FMLA’s regulations were expanded to cover eligible employees who are the spouse, son, daughter, parent or next of kin of a covered servicemember with a serious injury or illness incurred in the line of duty. The Act allows the employees up to 26 weeks of unpaid leave during a 12-month period. Eligible employees are also able to take up to 12 weeks of unpaid leave off in a 12-month period to deal with “qualified exigencies” related to the foreign deployment of the eligible employee’s parents, son, daughter or spouse.

On June 27, 2013, the DOL published a Notice of Proposed Rule Making to amend the FMLA regulations’ definition of “spouse” to include eligible employees in legal same sex-marriages regardless of where they live.

The Notice of Proposed Rule Making seeks to do the following:

  • Define spouse to include same-sex and common law marriages as follows:
    • Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition 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.
  • Focus on the place where the marriage was entered into or “place of celebration” (for all legal marriages specifically including common law and same-sex marriages) rather than the state of residence, as is the case now, so that those who have married legally may be eligible under the FMLA regardless of where they live. Currently, as of June 18, 2014, nineteen U.S. states and the District of Columbia have extended the right to marry to same-sex couples as well as opposite-sex couples. Sixteen foreign countries allow same-sex couples to marry.

The DOL Fact Sheet discussing the proposed rulemaking to amend the FMLA’s Definition of “Spouse” is available here. The Notice of Proposed Rulemaking was published in the Federal Register June 27, 2014 (79 FR 36445). Those interested in submitting comments may do so on or before August 11, 2014.

The FMLA and its regulations can be complicated. They often arise in tandem with issues related to the Americans with Disabilities Act. For assistance on addressing such issues or other state and federal employment laws in dealing with your workforce, contact Neil S. Talegaonkar. Neil can also be found on Twitter (@lawdawg71.)

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