United States: DOL Extends FMLA Rights To All Legally-Married Couples

On February 25, 2015, the Department of Labor (DOL) published a Final Rule revising the definition of "spouse" under the Family and Medical Leave Act (FMLA) and expanding it to include all legally-married individuals, including those in common law and same-sex marriages, regardless of whether their state of residence recognizes such unions. The Final Rule becomes effective on March 27, 2015.

The FMLA and the Current Definition of "Spouse"

The FMLA provides eligible employees with up to 12 weeks of job-protected, unpaid leave in a 12-month period. Employees are eligible if they have worked for at least 12 months and performed at least 1,250 service hours during the 12 months immediately preceding the leave, and work at a facility within 75 miles of 50 or more employees. FMLA leave is available for the following events:

  • the care of the employee's newborn child;
  • the adoption or foster care placement of a child with the employee;
  • the care of the employee's spouse, child, or parent with a serious health condition;
  • the employee's own serious health condition; and
  • any "qualifying exigency" arising from the active duty military service of the employee's spouse, child, or parent.

In addition, an employee may take up to 26 weeks in a 12-month period to care for a covered servicemember's serious injury or illness if the employee is the servicemember's spouse, child, parent, or next of kin.

FMLA leave may be taken continuously or, in certain circumstances, intermittently or on a reduced schedule. The employer must maintain any preexisting group health plan coverage while the employee is on FMLA leave.

Until 2013, Section 3 of the 1996 Defense of Marriage Act (DOMA) defined "marriage" for the purposes of federal law, including the FMLA, as "only a legal union between one man and one woman as husband and wife." It similarly restricted the definition of "spouse" to refer "only to a person of the opposite sex who is a husband or a wife." On June 26, 2013, the Supreme Court held in United States v. Windsor, 133 S. Ct. 2675 (2013), that Section 3 of DOMA violated the Fifth Amendment's guarantee of equal protection for same-sex couples who were legally married under state law, and was therefore unconstitutional. As a result of the Windsor ruling, the DOL was no longer prohibited from recognizing a same-sex spouse as a covered family member for FMLA leave purposes. The DOL subsequently advised that the definition of "spouse" extended to same-sex married couples living in states that recognized their marriages.

The Final Rule and the New Definition of "Spouse"

The February 2015 Final Rule still states that the term "spouse" as defined in the statute "means a husband or wife." However, the Final Rule makes three very significant revisions to the current definition that make clear that "husband or wife" includes all legally-married individuals, whether opposite-sex, same-sex, or married under common law.

First, the Final Rule changes how the DOL determines whether a marriage is valid and therefore whether the individuals are "spouses." Since Windsor, the DOL has used a "state of residence" rule -- that is, a couple is married if the couple lives in a state that recognizes the marriage as valid. In contrast, the Final Rule now uses a "place of celebration" rule, which looks to whether the marriage was legal in the jurisdiction in which it was entered.

Second, the revised definition of "spouse" explicitly includes same-sex marriages in addition to common law marriages.

Third, the revised definition of "spouse" includes same-sex marriages entered into abroad if they were valid where performed and could have been legally performed in at least one state.

These changes and the Final Rule itself make clear that the revised definition covers all spouses in legally-valid marriages, regardless of whether the regulation or the couple uses the terms "husband" or "wife."

The Final Rule explains that these changes are intended to ensure that all legally-married couples have consistent federal leave rights no matter where they live. The revisions also bring the DOL in line with other federal agencies such as the Department of Defense and the Internal Revenue Service, which have already adopted the "place of celebration" rule. Although some commenters raised a concern that this imposes a potential burden on employers to know the marriage laws of jurisdictions beyond those in which they operate, the change also simplifies FMLA administration for multi-state employers and those with employees who move between states.

In light of this significant expansion of the FMLA's scope, which becomes effective on March 27, 2015, employers should promptly seek guidance in revising their leave policies and administration to conform with the revised regulation. The attorneys at Day Pitney can assist in this effort. For detailed information regarding the FMLA and related state laws, please contact one of the attorneys in our practice group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.