Benefit News

DOL Expands Protections to Same-Sex Spouses Under the FMLA

March 3, 2015

The Department of Labor (DOL) has issued a final rule that expands protections under the federal Family and Medical Leave Act (FMLA) for same-sex spouses. Under the final rule, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouses or family members, regardless of where they live. Specifically, this final rule, which becomes effective March 27, 2015, revises the definition of "spouse" under the FMLA to:

  • Adopt a "place of celebration" rule (which is based on where the marriage was entered into), instead of the "state of residence" rule that applied under prior DOL guidance;
  • Expressly include same-sex marriages in addition to common law marriages; and
  • Recognize same-sex marriages entered into abroad that could have been entered into in at least one state of this country.

In connection with the final rule, the DOL also issued a set of frequently asked questions (FAQs) at to help employers and employees understand the changes to the FMLA's definition of "spouse."

To comply with the final rule, employers should review and update their FMLA policies and procedures (as necessary). Employers should also train employees who are involved in the leave management process on the expanded eligibility rules for same-sex spouses under the FMLA.


The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.

This final rule replaces prior guidance regarding FMLA protections for same-sex spouses that was issued following the U.S. Supreme Court's decision in United States v. Windsor, which invalidated Section 3 of the federal Defense of Marriage Act (DOMA)[1]. That guidance, available at, provided that, under the FMLA, the term "spouse" includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides. This is referred to as the "state of residence" rule.

Thus, under the "state of residence" rule, while states that allow same-sex marriage would be required to treat employees' same-sex and opposite-sex spouses equally for purposes of federal employee benefit laws, those states where same-sex marriage is not legal were not required to recognize same-sex marriages entered into in other jurisdictions where they are legal. As of the date of this publication, same-sex marriage is legal in 37 states,[2] the District of Columbia, and 18 countries.[3]

Overview of the Final Rule

The final rule moves from a "state of residence" rule to a "place of celebration" rule, where the validity of the marriage is based on the jurisdiction where the marriage was entered into. This rule is intended to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent FMLA rights, regardless of where they live.

The final rule amends the term "spouse" under the FMLA to mean as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a State that recognizes such marriages; or
  2. If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

According to the DOL, this definition is intended to cover all spouses in legal marriages as defined in the regulation, regardless of whether they use the terms "husband" or "wife." However, these protections still do not apply to same-sex couples that are not legally married (for example, same-sex couples in civil unions or domestic partnerships).

Impact on FMLA Leave

The definitional change means that eligible employees, regardless of where they live, will be able to:

  • Take FMLA leave to care for their same-sex spouse with a serious health condition;
  • Take qualifying exigency leave due to their same-sex spouse's covered military service; or
  • Take military caregiver leave for their same-sex spouse.

Additionally, in another fact sheet released last year at, the DOL recognized the eligibility of same-sex partners, whether married or not, to take leave to care for a partner's child, provided that they meet the in loco parentis requirement of providing day-to-day care or financial support for the child. The final rule expands the basis for an employee to take leave to care for a child of a same-sex spouse. Under the final rule, eligible employees are entitled to take FMLA leave to care for their stepchild (the child of the employee's same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met.

The final rule also entitles an eligible employee to take FMLA leave to care for a stepparent who is the same-sex spouse of the employee's parent, regardless of whether the stepparent ever stood in loco parentis to the employee.

The final rule does not change the DOL's current guidance that permits employers to require employees who take leave to care for a family member to provide reasonable documentation of the required family relationship. An employee may satisfy this requirement either by providing documentation (such as a marriage license or a court document) or by providing a simple statement asserting that the necessary family relationship exists. According to the DOL, it is the employee's choice whether to provide a simple statement or another type of document. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee's FMLA rights.

Legal Debate on Same-Sex Marriage

The Supreme Court has agreed to take on the issue of whether same-sex couples have a constitutional right to marry or whether states are permitted to ban same-sex marriage. Its opinion has the potential to impact the legality of same-sex marriages throughout the United States, either by legalizing gay marriage or by overturning court decisions that have invalidated state bans on same-sex marriage.

The Supreme Court's ruling is expected to be issued this summer, most likely in late June 2015.

More Information

For more information on the FMLA, please visit the DOL's FMLA website at The final rule is available at

For additional information, please contact your Burnham Benefits Consultant, Burnham Benefits at 949-833-2983, or

[1] DOMA was the federal law that barred same-sex couples from being treated as married under federal law.
[2] Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming
[3] Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/Scotland, Finland, France, Iceland, Luxembourg, The Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden and Uruguay

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