The 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.
On August 9, 2013, the Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act to accommodate same-sex marriage. According to the fact sheet issued by the DOL, spouse means:
“A husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”
Under the DOL’s amended definition of “spouse,” eligible employees of covered employers are now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.
This definition echoes the FMLA regulations, which define “spouse” based on the legal definition of marriage in the state of the employee’s residence. Therefore, the amended definition does not cover situations where a same-sex spouse lives in a state without same-sex marriage–even if they work in or were married in a state with same-sex marriage.