As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.”

Employers will recall that the U.S. Supreme Court, in United States v. Windsor, ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Section 3 of DOMA had provided that, for federal law purposes, marriage was only the legally recognized union between one man and one woman. As a result of the Windsor ruling, as of June 26, 2013, the FMLA regulatory definition of spouse included a legally married same-sex spouse based on the law of the state of the employee’s residence. If the same-sex couple resided in a state that recognized same-sex marriage and were legally married there, the spousal benefits under the FMLA would extend to the individuals in that marriage.

The DOL recently proposed to change the regulatory definition of spouse to mean the other person with whom an individual employee is entered into marriage, regardless of gender. The DOL further proposed to look to the law of the jurisdiction in which the marriage was entered into (including for common law marriages), as opposed to the law of the State in which the employee resides, and to expressly reference the inclusion of same-sex marriages in addition to common law marriages. After the required announcement and comment period, the DOL has now made its proposal final, to be effective as of March 27, 2015 (30 days after announcement of the rule change).