On February 25, 2015, the Department of Labor issued a Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (“FMLA”). The new definition will take effect on March 27, 2015.

The FMLA covers employers with 50 or more employees and provides eligible employees with 12 weeks of job-protected leave for an employee’s serious health condition or birth or adoption of a child. It also provides the employee the same 12-week leave to care for a spouse, child or parent with a serious health condition. The FMLA traditionally defined the term “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage, including common law marriage in states where it is recognized,” specifically looking to the employee’s state of residence to determine eligibility.

The Defense of Marriage Act of 1996 (“DOMA”) limited the definition of “spouse” to include only opposite-sex marriages. However, on June 26, 2013, the Supreme Court in United States v. Windsor found the DOMA limitation unconstitutional. The Department of Labor followed suit and began modifying its restrictions on its definition of “spouse,” culminating in this Final Rule issued February 25, 2015. The new definition also incorporates a “place of celebration” rule, including marriages entered into outside of the employee’s state of residence.

Effective March 27, 2015, the FMLA definition of the term “spouse” for purposes of FMLA spousal leave includes common-law and same-sex marriages if recognized in the state where such marriage was entered into, regardless of the employee’s state of residence. The definition also includes same-sex and common law marriages validly entered into outside of the United States, so long as such marriage could have been entered into in at least one state.

If your FMLA policy contains a definition of spouse, you should amend the policy to ensure the definition complies with the changes. If you require assistance drafting or amending your policy or determining qualified leave under the new rule, please do not hesitate to contact a member of our Dealer Practice Group for guidance at 248-645-9300 or by email:

Chuck LeFevre, Chair – [email protected]
Lawrence F. Raniszeski – [email protected]
Michael J. O’Shaughnessy – [email protected]
Eric R. Bowden – [email protected]
Alycia Pallach Wesley – [email protected]
Coriann Gastol – [email protected]