Smart Benefits: New FMLA Spouse Definition Now In Effect
Monday, March 30, 2015
On February 25, the Department of Labor issued a Final Rule revising the definition of spouse under the Family and Medical Leave Act (FMLA) – and it took effect last Friday.
The New Definition
Following the Supreme Court decision in United States v. Windsor, which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, the DOL announced the then-current definition of spouse under the FMLA allowed: Eligible employees could take leave under the FMLA to care for a same-sex spouse only if the employee resided in a state that recognized same-sex marriage.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTFebruary’s Final Rule revises that definition by using a “place of celebration” rule instead, which means the marriage must be recognized under the state law where the marriage took place so residency of the employee or the state of the employer doesn’t matter. That means eligible employees in legal same-sex marriages can take FMLA leave – regardless of where they live.
The Rule also includes individuals in lawfully recognized same-sex and common law marriages and marriage validly entered into outside the US if they could have been entered into in at least one state.
Same-Sex Spousal Rights
As a result of this change, eligible employees – regardless of where they live – can take:
- FMLA leave to care for their lawfully married same-sex spouse
- Qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service
- Military caregiver leave for their lawfully married same-sex spouse
- FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of the in loco parentis requirement
- FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee
Effect on Employers
The DOL believes this definitional change will reduce the administrative burden on employers that operate in multiple states or have employees who move between states with different marriage recognition rules since those employers wouldn’t have to consider the laws of the employee’s state of residence in determining FMLA eligibility.
Rob Calise is a founding partner of Cornerstone Group, where he helps clients control the costs of employee benefits by focusing on consumer driven strategies and on how to best utilize the tax savings tools the government provides. Rob serves as Chairman of the Board of United Benefit Advisors, and is a board member of the Blue Cross & Blue Shield of RI Broker Advisory Board, United HealthCare of New England Broker Advisory Board and Rhode Island Business Healthcare Advisors Council. He is also a member of the National Association of Health Underwriters (NAHU), American Health Insurance Association (AHIA) and the Employers Council on Flexible Compensation (ECFC), as well as various human resource associations. Rob is a graduate of Bryant University with a BS in Finance.
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