The U.S. Department of Labor issued a Final Rule today revising the definition of “spouse” under the FMLA. The Final Rule, which takes effect on March 27, 2015, makes it clear that eligible employees who are in same-sex marriages that were legal in the state in which the marriage was entered qualify as “spouses” under the FMLA regardless of whether or not the state in which they reside or work recognizes same-sex marriages. This change from “state of residence” to a “place of celebration” can be found at 29 CFR Section 825.102 and 122(b).
Employers must now determine if employees who entered into same-sex marriages did so in states in which such marriages were legal. And, if so, they must afford those employees “spouse” status under the FMLA.
Although many business and industry groups asked the DOL to specify the type of documentation that employers may require to prove the existence of a legally recognized same-sex marriage, the DOL rejected their entreaties. So, Section 825.122(k) remains unchanged and the employee has the option to merely provide a simple statement of the relationship.
Employers should ensure that supervisors are aware of the change to the regulation and the fact that they cannot demand additional documentation of the legality or existence of the same-sex marriage.