DOL Notice of Proposed Rulemaking: Changes to the FMLA Definition of 'Spouse'

RIN 1235-AA09: Department of Labor Notice of Proposed Rulemaking – Amendment to 29 CFR Part 825

Changes to the Family Medical Leave Act (FMLA) Regarding the Definition of “Spouse” and Applicability of FMLA Leave Provisions to Same-Sex Spouses

In the wake of the United States v. Windsor decision striking down Section 3 of the Defense of Marriage Act (DOMA), the Department of Labor (DOL), on June 26 2013, revised the definition of spouse for FMLA purposes to include same-sex spouses legally married and residing within a state that recognizes same-sex marriages.

This month, the DOL has proposed to further amend FMLA regulations— specifically 29 CFR §§ 825.102 and 825.122(b)—by revising the definition of spouse to include all same-sex spouses legally married in a state or foreign country that recognizes same-sex marriages regardless of their current state of residence. This means that all covered employers must comply with the rules and regulations under FMLA. “Covered employers” includes (1) private sector employers with more than 50 employees 20 or more workweeks in the current or preceding calendar year, (2) all public agencies including local, state, and Federal government agencies, and (3) all public and private elementary and secondary schools.

The FMLA rules and regulations only apply to eligible employees. To be eligible, an employee must work for a covered employer and (1) have worked for that employer for at least 12 months, (2) have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave, and (3) work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

State and local governments and their subdivisions are “public agencies” under the FMLA. 29 USC § 203(x). Therefore, under the proposed rule, all governments and other covered employers must comply with the rules and regulations of the FMLA including allowing same-sex spouses to claim FMLA spousal leave so long as they were married in a state or foreign country that recognize same-sex marriage even if residing in a state that does not, such as Tennessee. Thus, the new rule will require all covered employers in Tennessee to allow eligible employees to take FMLA leave to care for their same-sex spouse, stepchild (child of the employee’s samesex spouse), or stepparent (parent of the employee’s same-sex spouse).

The complete Notice of Proposed Rulemaking can be found here.

If you have any questions, please don’t hesitate to call Bill, Kathy, or Ashley, at (865) 546-7311 or email us at wemason@kmfpc.com, kaslinger@kmfpc.com, or atrotto@kmfpc.com.