Legal Alerts

DOL Redefines "Spouse" Under FMLA


The Wage and Hour Division of the U.S. Department of Labor issued a final rule amending its regulations at 29 CFR Part 825. Employees in legal same-sex marriages will now have the same rights to take leave to care for a spouse with a serious health condition under the FMLA as those afforded to employees in opposite-sex marriages, regardless of the state in which the employee resides.

Previously, if an employee resided in a state that did not recognize the employee's same-sex marriage, the FMLA definition of "spouse" did not include same-sex spouses. Under the new rule, the law of the location where the marriage took place affords eligibility for federal FMLA protections. All legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages. Called the "place of celebration rule," this is consistent with other federal agency interpretations of who is a spouse.

Because the DOL did not modify Sec. 825.122(k), employers may require employees who take leave to care for a family member to provide reasonable documentation of the family relationship. "Reasonable documentation" may constitute a statement (oral or written) from the employee verifying the marriage, or may require additional proof of marriage documentation. If an employee has already submitted proof of marriage for another purpose, such as dependent health benefits, such proof is sufficient to confirm the family relationship for purposes of FMLA leave.

The final rule will be effective 30 days after its publication in the Federal Register today, February 25.

This rule change should be especially noted for our South Dakota employers.

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