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DOL Issues Final Rule On Same Sex Spouses under the FMLA


March 5, 2015

In 2012, the United States Supreme Court, in United States v Windsor, struck as unconstitutional, Section 3 of the Defense of Marriage Act ("DOMA"), which sought to define the words "marriage" and "spouse" as meaning only legal unions between one man and one woman. In a widely anticipated move following this decision, the U.S. Department of Labor ("DOL") recently issued a Final Rule revising the regulatory definition of "spouse" under the Family Medical Leave Act ("FMLA"). Under the new rule, employees in legal, same-sex marriages are entitled to the same FMLA entitlements as opposite-sex spouses. The rule becomes effective on March 27, 2015.

Because same-sex marriages are not legal in every state, the new rule recognizes a "place of celebration" definition for marriage. Thus, the rule looks to the law of the place in which the marriage was entered into, rather than the employee's current state of residence. Accordingly, the rule applies to employees, even in those states that do not recognize same sex marriage, if the employees were legally married in another state. (As of February 2015, 32 states and the District of Columbia extend the right to marry to both same-sex and opposite-sex couples.) The rule also recognizes common law, same-sex marriage in states where it is recognized.

Importantly, the rule recognizes same-sex and common law marriages that were validly entered into outside of the United States if the marriage could have been entered into in at least one state in the United States. Should you have any questions with respect to this new rule, please respond to this email or contact your Elarbee Thompson attorney.