On February 25, 2015 the Department of Labor published a final rule effective March 27, 2015 which modifies the definition of spouse under the FMLA to include individuals in same-sex and common law marriages based on the place of celebration.  The change was made in light of the United States Supreme Court’s decision in United States v. Windsor in which the Court struck down Section 3 of the Defense of Marriage Act (DOMA).

Prior to the rule change, the state of residence controlled whether or not the term spouse included same-sex or common law marriages.  The place of celebration rule provides consistent recognition and FMLA rights for all legally married same-sex and common law employees regardless of where they live.  The place of celebration rule also recognizes FMLA rights for individuals married outside the United States as long as one state in the United States would recognize the validity of the marriage.

Employers should be aware of a couple points:

• Civil unions are not considered marriages under the federal FMLA. However, before denying FMLA to an employee in a civil union, the employer should look to any state law benefits that may apply. For instance, the Wisconsin FMLA allows leave to domestic partners. Also, some leave types may be allowed under “in loco parentis” rules.
• The final rule on same-sex and common law marriage states an employee may establish the requisite family relationship either by a simple statement asserting the relationship, or by providing other documentation the employee chooses to provide such as a marriage license or court document. However, employers should not require more proof of the requisite relationship from a same-sex or common law marriage employee than it would of an employee in an opposite sex marriage.
• The rule limiting FMLA leave for spouses working for the same employer applies equally to same-sex and common law marriages.
• The rule regarding leave to care for a stepparent or stepchild is the same for same-sex and common law marriages as for opposite sex marriages.
• Nothing in the change to the definition of spouse changes or invalidates the rules regarding leave based on an “in loco parentis” relationship.

If you have any questions about this, please contact Laurie Petersen at lpetersen@lindner-marsack.com.