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The New Definition of Spouse Under the FMLA


The FMLA, or Family and Medical Leave Act, allows eligible employees of covered employers to take unpaid leave for specified family and medical reasons. The statute also protects those employees' jobs while they are absent on leave. While this is a generally straightforward aspect of employment law, requesting a leave of absence may, in some cases, result in a question regarding the "family member" whose care is being provided.

Spouses are clearly considered family members, whose care you can provide during FMLA leave. In spite of this, it has not always been clear always clear whether an employee could claim FMLA leave for a same-sex spouse. As same-sex marriage laws were being passed in nearly every state, the definition of a spouse was bound to change. And now it has.

What Does Care for a Family Member Mean Under the FMLA?

When an employee's family member cannot care for his or her own basic needs due to a serious medical condition, including the inability to travel alone to the doctor, the worker can take FMLA leave to care for that individual. This allows them to provide psychological comfort and reassurance to a child, spouse or parent with a serious medical condition. The FMLA also covers those employees who need to fill in for others who are caring for such a family member. This type of care often results in intermittent leave, which is also allowed.

The History of the Term "Spouse" in the Language of the FMLA

Initially, the FMLA defined the term "spouse" as "a husband or wife, as the case may be." In 1993, the term was changed to reflect the reality of same-sex marriages, defining a spouse as "a husband or wife as defined or recognized under state law for purposes of marriage, including common law marriage in states where it is recognized." While recognizing the existence of same-sex marriages in certain states, at that time, the definition was still somewhat limited.

Regulations Updated to Include Same-Sex Spouses

Changes are periodically made to certain regulations with the intention of clarifying the language and requirements of federal statutes. The FMLA has a set of regulations that, among other things, define the relevant terms in the statute. Very recently, the Department of Labor (DOL), which is responsible for these regulations, finalized the latest changes to the definition of spouse.

The updated definition, just published in the Federal Register on February 25, 2015, reads:

…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 . . .

(emphasis added). This change means that employers are now required to recognize same sex individuals as spouses, as long as the marriage is recognized and valid in the state where they were married. Because the recent Supreme Court upheld the right to same-sex marriages throughout the nation, the main concern an employee will face is the question of whether or not their relationship is, in fact, a marriage.

What Does This Change Mean for Employees?

This update to the definition of spouse will impact several FMLA regulations, such as leave for pregnancy, adoption, and next of kin. What this new definition will not impact is domestic partnerships. Though the definition includes common law marriage, it does not include domestic partnerships, which are not legally recognized.

If you have questions about medical leave, or any other employment rights, please contact a Birmingham employment lawyer from Michel | King , either online or by calling us at (205) 265-1880.

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