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Proposal to Revise the Definition of "Spouse" Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The current statute enables employees to take leave to care for the employee's spouse who has a serious health condition.

The Department of Labor has proposed to revise the definition of spouse under the FMLA of 1993 in light of the United States Supreme Court's decision in United States v. Windsor, which found Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The proposed definition of spouse expressly references the inclusion of same-sex marriages by defining spouse as:

"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."

Previously, the FMLA had a "state of residence" rule that defined spouse based on the state where the employee was living at the time he or she sought to exercise FMLA leave. Therefore, employers in states where same-sex marriage is not recognized were not required to grant paid leave to employees in same-sex marriages to care for their spouse. Under the proposed definition, a same-sex couple who was legally married in any state would be able to get paid leave regardless of the state of residence at the time leave is taken.

D.C. recognizes same-sex marriages, so definition of spouse includes same-sex spouses under the District of Columbia's Safe and Sick Leave Act and Family Medical Leave Act. Therefore, an employee married to a same sex spouse already qualifies for leave under the D.C. law but, if the proposed regulations are adopted, will also qualify under federal law.