DOL Proposes to Revise FMLA Definition of "Spouse"

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By March 2014 the Wage and Hour Division at the Department of Labor (DOL) will issue a proposal to revise the Family and Medical Leave Act (FMLA) definition of “spouse” based on the Supreme Court’s decision in United States v. Windsor, the agency promised in its Nov. 26, 2013, regulatory guidance.

In Windsor, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA), which defined “marriage” and “spouse,” was unconstitutional. The court said: “The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

Windsor does not obligate states to recognize same-sex marriages performed in other states, which can be confusing for employers. “It is possible—and preferable from my perspective—that the DOL do away with this confusion and implement a ‘place of celebration’ rule, which would mean the DOL no longer looks to state of residence but to whether the same-sex marriage was valid where performed. This would be a big departure from the current regulations but resolve the challenges employers face in implementing constantly changing state recognition rules.”