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Department of Labor Proposes Expanding FMLA for Same-Sex Spouses

Labor & Employment Law Update Mike Fischer

Your employee and her same-sex partner were married in California but now reside in Arizona. Is she eligible for Family and Medical Leave Act (FMLA) leave if her partner—her spouse, under California law—has a serious health condition? Up until now, the answer has been “no,” because Arizona doesn’t recognize same-sex marriage. But new proposed regulations from the U.S. Department of Labor (DOL) make clear that “the times, they are a-changin’.”

The DOL has just issued a Notice of Proposed Rulemaking that would broaden the definition of the term “spouse” under the FMLA, in light of the U.S. Supreme Court’s decision last June in United States v. Windsor, which ruled that individuals in same-sex marriages cannot be excluded from rights and protections available through more than 1,000 federal laws, including the FMLA.

Under the DOL’s current FMLA regulations, an employee’s same-sex partner only counts as a “spouse” if the employee is married to that partner—and their marriage is recognized in the state where they reside. The DOL has proposed to amend the definition of “spouse” to include any partner to whom an employee is married, as long as the marriage was entered into in a state recognizing such marriages. Spouses in same-sex marriages entered into abroad would also fit within the new definition, as long as their marriage could have been entered into in at least one U.S. state.

Among other protections, the FMLA provides eligible employees with unpaid spousal leave:

  • to care for a spouse with a serious health condition;
  • to care for a spouse who is a covered service member with a serious illness or injury; or
  • for a qualifying military exigency arising from a spouse’s service in the military.

Current FMLA regulations also allow an employee to take leave to care for stepchildren and stepparents. Consistent with the DOL’s proposed definition of “spouse,” the DOL’s proposed regulatory change would also allow an employee to take leave to care for either a same-sex spouse’s child or the same-sex spouse of the employee’s parent, if that stepchild or stepparent has a serious health condition.

Before finalizing these proposed regulatory revisions, the DOL is soliciting comments, which can be submitted through August 11, 2014 at In the interim, the old rules apply, meaning that spousal FMLA protections for married, same-sex partners of employees only exist when the couple resides in a state recognizing such marriages. Currently, states recognizing same-sex marriages include California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

For more information on the proposed revision or process for submitting comments, please contact Marian Zapata-Rossa at (602) 229-5447 / Mike Fischer at (414) 277-5639 / Fred Gants at (608) 283-2618 / [email protected], Scott Watson at (312) 715-5149 / [email protected], Otto Immel at 239) 659-5041 / [email protected], or your Quarles & Brady attorney.

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