The “new” rule for who is a spouse

by Michael Haberman on March 2, 2015 · 0 comments

The USDOL has replaced the definition of "spouse" effective 3/27/2015

The USDOL has replaced the definition of “spouse” effective 3/27/2015

As I have told classes and blog post readers the changing nature of relationships in the US will alter the framework and definitions we have in the workplace. Up to this time those changing definitions only applied to some states and to federal contractors under Executive Orders administered by the OFCCP. As of February 25, 2015 that has now changed.

The new rule

On February 27, 2015 the US Department of Labor published the FINAL rule on changing the definition of spouse under the Family and Medical Leave Act. According to the USDOL Fact Sheet:

  • The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
  • The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

This new rule will be effective as of March 27, 2015.

The impact

This definitional change means that eligible employees, regardless of where they live, will be able to

  • take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition,
  • take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service, or
  • take military caregiver leave for their lawfully married same-sex spouse.
  • This change entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met.1
  • This change also entitles eligible employees to take 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.

No big surprise to HR

This is no big surprise to anyone in HR, it has been underway since 2013. It might, however, require some education and training with the management and supervisory staff. Generally they are the first to get a request for time. Improper responses to these requests could end up spelling trouble.

Who is covered?

Just a reminder of what employers are covered. A covered employer is a:

  • private sector employer with 50 or more employees in 20 or more workweeks in the current or preceding calendar year;
  • public agency, including a local, state, or federal government agency, regardless of the number of employees it employs; or
  • public or private elementary or secondary school, regardless of the number of employees it employs.

Not all employees are covered by FMLA, so be sure to understand if someone is covered. Granting improper leave and trying to rescind it can lead to a lawsuit.

If you would like to read the new rule you can find it here. The Facts Sheet can be found here.

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