The Department of Labor recently has adopted a Final Rule to the Family and Medical Leave Act (“FMLA”) (29 U.S.C. § 2601 et seq.), amending previous Department of Labor regulations to allow for legally married same-sex couples to receive FMLA benefits.

The Department of Labor’s Final Rule comes in the wake of the United States Supreme Court’s 2013 ruling in United States v. Windsor, 133 S.Ct. 2675 (2013), where the court found Section 3 of the Defense of Marriage Act to be unconstitutional. The Final Rule was published by the Department of Labor on Feb. 25, 2015, and will take effect on March 27, 2015.

Under the Final Rule, the FMLA definition of “spouse” is amended to include all individuals in legal marriages, regardless of whether the state where an individual currently resides recognizes same-sex marriage. As long as the location where the individual’s marriage occurred recognizes same-sex marriage, the person will be entitled to receive FMLA benefits. And, by adopting a “place of celebration standard” instead of the previous “state of residence” standard for recognizing marriages, the Final Rule, for purposes of FMLA benefits, effectively recognizes same-sex marriages performed in other countries, as long as the marriage was legal in the given country.

The Final Rule does not amend in any manner the amount of entitled leave under the FMLA or the employers covered by the FMLA. Also, the Final Rule does not provide protection for civil unions. Thus, employees in same-sex civil unions are not guaranteed the right to take FMLA spousal leave. However, states and employers are free to provide greater protection than that provided by the FMLA.

The Final Rule and related pamphlets of information can be found here.

For more information, please contact a member of our Labor & Employment team.