The Department of Labor issued a Final Rule on February 25, 2015 revising the definition of "spouse" under the Family and Medical Leave Act of 1993 (FMLA).  Under the new rule, which will become effective on March 27, 2015, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for a spouse or family member regardless of where they live, provided that they entered into marriage in a state that allows same-sex marriage.

The new rule comes after the United States Supreme Court's June 2013 decision in United States v. Windsor, which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.  Section 3 of DOMA defined "spouse" as a person of the opposite sex for federal law purposes.  This meant that, prior to the Windsor decision, employees were unable to use FMLA leave to care for the serious health condition of a same-sex spouse.

Following the Windsor decision, the Department of Labor applied a "state of residence" rule, establishing that employees in same-sex marriages recognized in their current state of residence could take FMLA leave to care for a same-sex spouse.  This approach excluded otherwise eligible employees from taking leave to care for a same-sex spouse if they lived in a state that does not recognize same-sex marriage.  Under the new "state of celebration" rule, the DOL will look to the law of the place where the marriage was entered into to ensure that all legally married employees have consistent FMLA leave rights regardless of where they live.