The Department of Labor announced an amended regulation that would expand the definition of “spouse” under the FMLA to include coverage for employees in legal same-sex marriages. This allows eligible employees to take FMLA leave to care for a same-sex spouse with a serious health condition-affording the same leave rights as employees in opposite-sex marriages. Under the new rule, the DOL adopted a “place of celebration” provision so that eligibility for FMLA protections is now based upon the law of the place in which the marriage took place. The previous regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Same-sex spousal caregiver leave under the FMLA is now available regardless of the state in which the employee lives, so long as the employee’s same-sex marriage is legal in the state in which they were married. This “place of celebration” provision allows all legally married couples – both opposite-sex and same-sex – to have consistent federal family leave rights, regardless of whether the state in which they currently reside recognizes such marriages.

The DOL’s amendment follows the Supreme Court’s 2013 decision in United States v. Windsor, which struck down the federal Defense of Marriage Act’s definition of marriage as exclusively opposite-sex, and the “place of celebration” rule is consistent with interpretations adopted by other federal agencies, including the Department of Defense and the IRS, allowing for greater uniformity. The revised regulation is also intended to “reduce[] the administrative burden on employers that operate in more than one State, or that have employees who between States with different marriage recognition rules; such employers will not have to consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.”

Despite expanding the FMLA’s definition of “spouse” to include same-sex marriages, the DOL refused to make any modifications to its existing rule regarding the documentation an employer may require in order to verify that an employee has a valid marriage. The relevant regulation, located at 29 CFR §825.122(k), permits employers to require employees who take leave to care for a family member to provide “reasonable documentation” of their family relationship, which may be satisfied by “a simple statement from the employee” asserting that the requisite family relationship exists or “a court document” (including a child’s birth certificate). The DOL stated that the current rule “adequately addresses the nature of the documentation that employers may require…in all cases” and no additional requirements are necessary for an employee to satisfy the employer’s request for documentation and prove the existence of a family relationship where a same-sex marriage is involved. It is the employee’s choice whether to provide a “simple statement” or another type of documentation, but the employer may require that any such statement be in writing. The DOL also stated that if an employee has already submitted proof of marriage to the employer for some other purpose, such as obtaining health benefits for the spouse, “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”

The DOL’s final rule is scheduled to take effect on March 27, 2015.

By Rebecca D. Stanglein, rstanglein@dsda.com