DOL Permits FMLA Leave for Same-Sex Spouses Under “Place of Celebration” Rule

The U.S. Department of Labor (DOL) updated the Family and Medical Leave Act (FMLA) to allow employees in legal same-sex marriages to take FMLA leave to care for a spouse or family member, as long as the marriage occurred in a state that recognized same-sex marriage. The final rule was released on February 23, 2015, and is effective March 27, 2015.

After the U.S. Supreme Court in United States v. Windsor struck down Section 3 of the federal Defense of Marriage Act (DOMA) as unconstitutional, the DOL announced that eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognizes same-sex marriage (“state of residence” rule). The final rule moves from a “state of residence” rule to a “place of celebration” rule by revising the definition of spouse to include an individual in a same-sex or common law marriage that either:

Was entered into in a state that recognizes such marriages; or
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.

The final rule does not apply to same-sex or opposite-sex civil unions.