DOL Revises Definition of Spouse Under FMLA

Posted on Tue, Feb 24, 2015 ©2021 Drucker & Scaccetti

The Department of Labor (DOL) has announced it will issue a Final Rule change to extend Family and Medical Leave Act (FMLA) benefits to all married same-sex couples effective March 27, 2015.


The final change comes nearly eight months after the DOL published a Notice of Proposed Rulemaking in June 2014 to revise the definition of the term “spouse” under the FMLA. The proposed change came on the heels of the Supreme Court of the United States decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act to be unconstitutional.


The DOL previously defined the term “spouse” narrowly, omitting reference to same-sex married couples and utilizing the “state of residence” rule, which is based on the definition of marriage in the state the married couple resides.  This posed a serious problem for married same-sex couples residing in non-marriage equality states needing to avail themselves to FMLA protections.


The Final Rule, which defines the term “spouse” for purposes of the FMLA,  includes reference to same-sex couples and utilizes the “state of celebration” rule, which is based on the definition of marriage in the state or country the marriage was lawfully entered into, no matter where the couple currently resides.


Private employers with 50 or more employees must comply with the FMLA, which allows eligible employees to take 12 weeks of unpaid leave, every 12 months, to care for a spouse, child or parent with a serious health condition.  This includes the employee’s step-children, who may not have been legally adopted by the employee; an issue not specific to the LGBT community, but one that presents itself often.


U.S. Secretary of Labor Thomas E. Perez said in a recent statement, “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else.  All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss.”


The Supreme Court is slated to rule on the issue of marriage equality in June 2015, which will hopefully resolve issues that same-sex married couples living in non-marriage equality states still face.  These include federal policies and regulations that define marriage based on the state of residence rule including, but not limited to: spousal Veterans benefits, Social Security benefits and copyright ownership.


Click here to view the DOL provided FAQs about the FMLA final rule.


The LGBT Practice Group at Drucker & Scaccetti is dedicated to providing high-level tax services to the LGBT community. As an ally firm, we are more than aware of the tax issues facing LGBT couples; we are the experts.  Contact us if you have a question or would like to discuss how we might assist you with your tax and financial planning needs, including determination of the tax and economic impact of marriage.

Topics: Supreme Court, DOMA, Same-sex marriage, spouse, FMLA, Family leave

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