In response to the U.S. Supreme Court’s holding in United States v. Windsor that section 3 of the Defense of Marriage Act is unconstitutional, the DOL has issued a NPRM to revise the definition of “spouse” under the FMLA.
The Department proposes to define spouse as follows:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
Key Takeaways for employers:
- Rather than consider the state of residence of the employee in order to determine the legality of the relationship, the rule would consider the legality of the marriage based upon where the marriage was entered into.
- The definition of spouse will specifically reference same-sex marriages, common law marriages and same-sex marriages entered into outside of the United States.
- If it becomes effective, this proposed rule will significantly alter the coverage required under the FMLA. Employers do not need to take any action at this time, but they should track this development.
This NPRM has not yet been published in the Federal Register and, as such, the public comment period has not yet begun.