On February 25, 2015, the Wage & Hour Division of the DOL issued final regulations changing the FMLA definition of spouse to a “state of celebration” rule. The state of celebration rule means that any marriage legally entered into in any state is valid under the FMLA. Additionally, any marriage legally entered into in any foreign country is valid under the FMLA if the marriage could have been entered into legally in at least one state. For employers subject to the FMLA, leave must now be allowed for eligible employees to care for a same-sex spouse under the same terms that leave is allowed for an eligible employee with an opposite-sex spouse.
This revised definition of spouse goes is effective on March 27, 2015. Employers who are subject to FMLA must review their FMLA policies to make sure spousal coverage meets the new state of celebration rule.
In June 2013, the Supreme Court decided the Windsor case and opened the door for federal agencies to begin redefining the term “spouse” to include spouses of the same sex. In August 2013, the WHD clarified that the FMLA definition of spouse already included same-sex spouses, if the spouse is recognized under state law where the employee resides. At that time, the WHD acknowledged the FMLA’s state of residence rule was different than the IRS and other DOL recognition based on the state of celebration of the marriage. In acknowledging this disparity, the WHD indicated that the definition would eventually be updated to a state of celebration rule in order to be consistent