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Who Is a Spouse According to the Department of Labor?

By Ashley Eley Cannady

The Department of Labor issued a rule effective March 27, 2015, to revise the definition of “spouse” under the Family Medical Leave Act (“FMLA”).  The new rule is intended to provide lawfully married same-sex couples the same FMLA rights as married heterosexual couples.  The FMLA provides eligible employees of covered employers with unpaid, protected leave for specified family, medical, or military reasons.

The new rule states:

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.

29 C.F.R. §825.102.

Thus, the newly amended rule expands the definition of spouse to include all individuals in legal marriages whether they be same-sex or common law marriages.  The DOL believes that the revised definition will make it easier for employers with multi-state operations to administer FMLA policies because it does not take into account the marriage laws of the state in which the employee resides.  Rather, the marriage must have been validly entered into in the “place of celebration.”  Specifically, a spouse is now a husband or wife as defined or recognized in the state where the individual was married.  The term spouse also includes those whose marriage was entered into out of the country so long as the marriage could have legally occurred in at least one state.

Civil unions and domestic partnerships are not covered by revised definition, but employers may offer greater rights than those established by the FMLA.  For example, an employee working for a covered employee in Mississippi who entered into a same-sex marriage in New York may be entitled to FMLA leave to care for a same-sex spouse even though Mississippi does not recognize same-sex marriages.

According to the DOL, the revisions mean that eligible employees may take leave to care for a same-sex spouse with a serious health condition, emergency leave due to a same-sex spouse’s military service, military caregiver leave for a same-sex spouse, and leave to care for a stepparent who is the same-sex spouse of a parent.

Texas, Louisiana, Nebraska, Arkansas, and Georgia, through their respective Attorneys General, have taken legal action to block enforcement of the rule. On March 26, 2015, a federal district court in Texas granted a preliminary injunction preventing DOL from enforcing the rule.  The DOL has taken the position in pleadings filed with that court that it would honor the injunction in Texas, Arkansas, Louisiana, and Nebraska.  The states who brought the suit have argued that the scope of the injunction broader than the restrictive interpretation given by DOL.  That issue will likely not be decided until sometime this Summer.

Employers in states other than Texas, Louisiana, Nebraska, Arkansas, and Georgia, should err on the side of caution and assume that DOL will attempt to seek enforcement of the rule.


Ashley_CannadyAshley Eley Cannady is an attorney at Balch & Bingham LLP. Her practice focuses on defending employers in employment related disputes before courts and administrative agencies. She also regularly provides advice to employers and management regarding compliance with Title VII, FMLA, FLSA, ADA, ADEA, and the WARN Act. Additionally, she assists employers with issues arising out of employment agreements and covenants not to compete and with discipline and termination matters. Ms. Cannady is a member of the Mississippi Bar Association and Mississippi Women Lawyers Association. She is admitted to practice before all Mississippi State Courts, the United States District Courts for the Southern and Northern Districts of Mississippi, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States.
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