The US Department of Labor has announced a Notice of Proposed Rulemaking (“NPRM”) to revise the definition of spouse under the Family Medical Leave Act of 1993 (“FMLA”). The NPRM proposes to amend the definition of spouse so that 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. This amendment arises from the United States Supreme Court’s decision in United States v. Windsor which found Section 3 of the Defense of Marriage Activity to be unconstitutional.
The Department proposes to amend the definition of spouse in the FMLA 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.”
Please note, this change is not yet final. Although the Office of Budget and Management has approved and reviewed the NPRM as of the date of this information, the document has not yet been published in the Federal Register.
The impact of this change would mean that eligible employees, regardless of where they live, would be able to:
- Take FMLA leave to care for their same sex spouse with a serious health condition;
- Take qualifying exigency leave due to their same sex spouse’s covered military service;
- Take military caregiver leave for their same sex spouse.
In addition, the proposed change could also entitle eligible employees to take FMLA leave to care for their step-child (the child of the employee’s same sex spouse) or step-parent (same sex spouse of the employee’s parent) even if the in loco parentis requirement is not met.
Stay tuned as further information becomes available as this is a possible change that could affect many employers.