Technical Bulletin – 2015 Issue 1 – DOL Final FMLA Regulations Adopt State of Celebration Rule for Same-sex Marriage

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On February 25th, the Department published its final rule on the definition of spouse under FMLA and incorporated all material changes proposed under the NPRM. The final rule amends the regulatory definition of spouse under FMLA to include all individuals in legal marriages, regardless of where they live. More specifically, the definition of spouse is now a husband or wife as defined or recognized in the State where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages.

The revised regulatory definition of spouse encompasses a husband or wife in a common law marriage as long as the common law marriage was validly entered into in a State that permits the formation of common law marriages, regardless of the State in which the employee currently resides. The final rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one State.