New Definition of Spouse Under Federal Family Medical Leave Act Now Includes Same Sex Couples

Prior to 2013, same sex spouses had no FMLA leave benefits regardless of whether their residence state recognized same sex marriages. However, U.S. Supreme Court’s 2013 decision in U.S. v. Windsor struck down the federal Defense of Marriage Act which had defined marriage as being between a man and a woman. The ruling opened the door to the expansion of the rights of married persons to same sex couples.

The Department of Labor’s initial regulations following Windsor protected the FMLA rights of same sex spouses but only if their marriage was legally recognized in the state where they lived. This standard created confusion where such a same sex couple later moved to a state (or were employed in one) that did not recognize their marriage. Newly issued FMLA regulations remedy this inequity. FMLA protections now apply to all spouses who were legally married in any state even if the state where they now reside or work does not recognize same sex marriages. See, 29 Code of Federal Regulations (C.F.R.) section 825.102.

The new rule does not alter the eligibility requirements under FMLA or change the threshold of 50 or more employees in order for a company to be bound by that law. Please consult the Department of Labor’s newly issued “Frequently Asked Questions” (FAQs) for a broad survey of FMLA’s rights and requirements. Our attorneys Tim Bowles, Cindy Bamforth, and Helena Kobrin are also able to address questions regarding this law.

Cindy Bamforth, April 25, 2015