Although the Family and Medical Leave Act of 1993 is not something I usually address, the Department of Labor recently issued final regulations that did address an issue I have previously written about and that is recognition of same-sex spouses.

Also see: Benefits for domestic partners: What does your plan actually say?

The FMLA generally provides that eligible employees can take leaves of absence for certain family- and medical-related reasons, including caring for a spouse.

The new regulations redefine the term “spouse” for FMLA purposes to include same-sex couples who have been legally married in any jurisdiction, regardless of whether the state in which they reside or work recognizes their marriage. The new regulatory definition of “spouse” under the FMLA goes into effect Friday, March 27.

Also see: DOL updates FMLA definition of ‘spouse’

This is somewhat significant in the employee benefits arena in that health benefits are generally continued during a qualified leave. More often than not, the request for FMLA leave is handled through the HR department, which also happens to be handling benefit plan administration. 

Consequently, the question can come up as to whether FMLA leave is available, and if so, is it the type of leave that permits continuation of health coverage. More importantly, though, I think it is further clarification that, from a federal perspective, the “celebration” rule is becoming the accepted norm. In short, if the jurisdiction where the marriage was performed recognizes the marriage, it would be recognized anywhere else.

Tucked within the FMLA final rules is a little further clarification for marriages outside of the United States. The final rule provides that in these cases, if the marriage is valid in the place where it was entered into and could have been entered into in at least one state, it will be recognized for FMLA purposes and the definition of “spouse.” 

This is also helpful to some extent in understanding benefit plan administration because it gives at least some insight into how the DOL might look at a benefit plan trying to determine whether a foreign same-sex marriage should be recognized. It is not definitive, but it does add a layer to help understand the verification of dependent status for enrollment in U.S. plans.

The point being is that as we fine tune plan administration, employers and plan sponsors can get additional insight from this type of indirect revision to rules. Employers subject to the FMLA clearly have to abide by this new rule, but benefit plans can also use it as a sounding board to ensure proper compliance. 

If the employer has to recognize the spouse for FMLA purposes, it seems to suggest that the employer should also recognize the spouse for benefit plan purposes. In any event, employers who start revising their FMLA policies to reflect this change should also use it as an opportunity to review their benefit plan language to make sure it accurately reflects the definition of “spouse.”

Keith R. McMurdy is a partner with Fox Rothschild focusing on labor and employment issues; he can be reached at or (212) 878-7919.

The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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