On February 25, 2015, The Department of Labor revised the regulatory definition of “spouse” under the Family and Medical Leave Act (FMLA) to include same-sex marriages regardless of the state in which the employee lives. Therefore, eligible employees in a legal same-sex marriage will be able to take FMLA leave to care for their spouse or family member, regardless of where they live.
The amendment to the FMLA extends to all 50 states – even those that do not recognize same-sex marriages. The effective date for the Final Rule was March 27.
What Impact Does This Change Have on FMLA Leave Usage?
This definitional change means that eligible employees, regardless of where they live, will be able to:
- take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition,
- take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service, or
- take military caregiver leave for their lawfully married same-sex spouse.
This change entitles eligible employees to take FMLA leave to care for their stepchild (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.
This change also entitles eligible employees 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.