The Department of Labor issued a final rule yesterday that extends FMLA protections to eligible employees in same sex marriages so long as the marriages are legal where the ceremonies were performed. This is the so-called “place of celebration” rule. The former rule authorized FMLA spousal leave only if same-sex marriage was valid in the employee’s state of residence (i.e. “state of residence” rule). Under the new place of celebration rule, if an eligible employee is married in a state that authorizes same-sex marriage, FMLA spousal leave is permitted even if same-sex marriage is not valid in the employee’s state of residence.

The issue of whether the FMLA permitted same-sex spousal leave arose after the United States Supreme Court ruled in United States v. Windsor, 133 S.Ct. 2675, 2693 (2013), that the Federal definition of marriage excluding same-sex marriage was unconstitutional. Courts had held that the Federal definition of marriage applied to FMLA spousal leave, even though the FMLA regulations stated the state’s law of the employee’s residence applied to determine the validity of the marriage. Since Windsor found the Federal definition of marriage unconstitutional, the FMLA definition of “spouse” applied. Many commentators were dissatisfied with the FMLA place of residence rule because of the lack of uniformity. The DOL stated that the new place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.”

Same-sex marriage is valid in the majority of states (37 at the time of writing) due to a majority of court decisions finding laws banning same-sex marriages unconstitutional. There are several states, including Kentucky, where the validity of same-sex marriage is in limbo due to pending court decisions. This year, the U.S. Supreme Court will decide whether laws banning same-sex marriage are unconstitutional and, thus, whether same-sex marriage is legal in all 50 states. If the Court determines that same-sex marriage is valid in all 50 states, then the new FMLA rule would be moot. Until then, the new FMLA rule requires that employers utilize the law of the “place of celebration” to determine if a same-sex marriage is valid.

The FMLA has several spousal leave provisions. Leave may be taken when:

• A spouse of an employee has a serious health condition;
• A qualifying exigency exists arising from a spouse serving in the National Guard or the Regular Armed Forces who is deployed to a foreign country in support of a contingency operation; or
• A qualified service member’s spouse of an employee has a serious injury or illness.

Also, according to the DOL, the new rule would permit employees to take FMLA leave to care for a stepchild, who is the child of employee’s same-sex spouse, “regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met.” In addition, it also entitles an “eligible employee to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.” DOL Fact Sheet, available here.

The FMLA Final Rule regarding the definition of spouse is effective March 27. Employers are advised to consult counsel regarding handbooks and implementation of this new rule.

Click here to view the text of the final rule, as well as the Fact Sheet, Frequently Asked Questions and Press Release.