Effective this week, on March 27, 2015, U.S. Department of Labor (“DOL”) will begin to enforce its Final Rule expanding the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to include same sex marriages.  Following the U.S. Supreme Court’s decision in United States v. Windsor, which held that section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional, the DOL issued a Final Rule amending the definition of “spouse” to ensure eligible employees in same-sex marriages can take FMLA leave to care for a spouse or family member.

This is particularly significant as the DOL will no longer be using the “state of residence” rule to determine whether the same-sex partner is a qualified “spouse.”  Instead, the DOL will look to the “place of celebration” or the law of the state in which the marriage was entered.  In other words, even though a same-sex couple may live in a state which does not permit same-sex marriage, both individuals may be a qualified spouse if the marriage is entered in a state which acknowledges their union.

According to the DOL “A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  http://www.dol.gov/whd/fmla/spouse/factsheet.htm

With this change, companies with 50 or more employees should update employment policies and handbooks to ensure compliance.