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US Department of Labor Revises Definition of “Spouse” under FMLA

By Jeffrey Knipmeyer on April 1, 2015

Jeffrey Knipmeyer
Co-Managing Partner
Nottage and Ward
Chicago Family Law
In 2013, the United States Supreme Court in United States v. Windsor declared section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Section 3 of DOMA had prevented the federal government from recognizing the validity of same-sex marriages for the purpose of federal laws or programs, even when the same-sex couples were legally married in their home state. Section 2 of DOMA, which declares that all states and territories have the right to deny recognition of same-sex marriages that originated in states where they are legally recognized, was not challenged in Windsor.

After Windsor, President Obama instructed his Cabinet to review all relevant federal statutes to implement the Court’s decision, including the implications of the decision with regard to federal benefits and programs. The Department of Labor reviewed the application of the Court’s ruling, and the President’s directive, to the Family and Medical Leave Act (FMLA). The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for certain family and medical reasons. In its review, the Department determined that the existing definition of “spouse” under the FMLA would allow for an eligible employee to take leave to care for a same-sex spouse, but only if that employee resided in a state where same-sex marriage is recognized. This is the so-called “state of residence” rule for the definition of a spouse.

In order to provide FMLA rights to all legally married same-sex couples consistent with Windsor, the Department issued a final rule on February 25, 2015. The final rule changes the regulatory definition of spouse under the FMLA from a “state of residence” rule to a “place of celebration” rule to determine an eligible spouse. With this change, a spouse is now determined by the law of the state in which the marriage was entered into, as opposed to the law of the state in which the employee currently resides. This change will ensure that spouses in same-sex marriages have the same ability to fully exercise their FMLA rights as spouses in opposite-sex marriages, regardless of where they live.

The change in the definition of spouse means that eligible employees will be able to: take FMLA leave to care for a same-sex spouse with a serious health condition; take exigency leave due to a same-sex spouse’s covered military service; and, take military caregiver leave for a same-sex spouse. Additionally, the change entitles eligible employees to take FMLA leave to care for their step-child (child of the employee’s same-sex spouse), and to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent.

The effective date for the final rule is March 27, 2015. For additional information on the FMLA you can visit www.dol.gov/whd/fmla.

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Jeffrey Knipmeyer previously served as a State’s Attorney, primarily litigating child support, child abuse, and neglect cases. Before joining Nottage and Ward, Jeffrey worked for 7 years in a general litigation firm, where he not only honed his expertise in divorce, custody, child support, and juvenile matters, but also acquired a diverse knowledge in a full range of other legal areas: estate planning and administration, criminal defense, personal injury, juvenile, insurance, and real estate. Jeffrey was also frequently appointed as a Guardian Ad Litem. Please contact him at jk@nottawar.com.

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