FMLA Redefines “Spouse” to Include Same-Sex Partners

The Department of Labor announced this week that it officially amended the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” to include same-sex partners. This change grants same sex couples the same FMLA rights and protections as heterosexual couples. The amendment to the FMLA extends to all 50 states – even those that do not currently recognize same-sex marriage.


In September, 1996, the Defense of Marriage Act (DOMA) was enacted. This Act established the federal definition of marriage as a union between one man and one woman. DOMA also permitted states not to recognize same-sex marriages performed in other states. DOMA stood for seventeen years until the Supreme Court declared it to be unconstitutional in United States v. Windsor.

In 2014, the Department of Labor expanded the definition of “spouse” for certain employment laws to include same-sex marriages.  This opened the door for employees to access certain benefits which previously were only enjoyed by partners in a traditional marriage.

While this sounds like a significant victory for the equality-in-marriage camp, it did not grant same sex couples the right under the FMLA to care for a spouse suffering from a serious medical condition.  This right was only available to same sex couples in the 17 states where such marriages were recognized at the time. 

Where Things Stand Now

Under the final rule published on February 25, 2015, the Department of Labor modified the definition of “spouse” to include legally recognized same-sex marriages regardless of the state in which the employee lives. Most significantly, under the revised definition, employees who legally entered a same-sex relationship will be able to claim their “place of celebration” (ie – marriage) to determine eligibility, not their “state of residence,” as previously codified.

Simply stated, employees who married in a state that recognizes same-sex marriage and then moved to a state that does not recognize the marriage, retain their rights and can now claim FMLA protections. 

“The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one,” said U.S. Secretary of Labor Thomas Perez. “With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else.”

The Impact to Employers So what are the key take-aways for employers? Below are some important points to keep in mind:

  • To access FMLA protections, employees are still required to be legally married, whether in traditional or same-sex marriages. “Civil unions” and “domestic partnerships” do not constitute marriage and are not impacted by the law.
  • The amended law is actually expected to help employers that operate in multiple states, or have employees that move between states. It will ease the administrative burden of tracking the various states’ marriage rules as employers no longer need to heed the employee’s state of residency to determine FMLA eligibility.
  • Employers should update all FMLA policies and procedures to include the new definition of “spouse”.
  • All managers and supervisors should be informed of the new guidelines and employers must ensure they understand the impact of the law on their employees.

The new guidelines go into effect on March 27, 2015. FMLA Expertise

Since 1982, HR outsourcing firm CPEhr has assisted hundreds of small and mid-sized employers manage their FMLA responsibilities, representing tens-of-thousands of employees across the country. From policy audit and creation, to employee relations and compliance support, CPEhr can help you understand the impact of these new guidelines and implement any aspects of the law. Contact CPEhr today and one our trained employment experts will be happy to assist you.