Same-sex marriage is a hot legal topic these days. In the last decade, significant changes in the law surrounding the legal rights of same-sex couples have occurred adding new obligations to employers. One such change happened in February of 2015, when the Department of Labor issued its final rule amending the definition of “spouse” under the Family Medical Leave Act (FMLA) to include same-sex couples who were married in a state recognizing same-sex marriage.

The FMLA applies to “all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees.” Under FMLA, eligible employees are allowed, even entitled, to take up to 12 unpaid weeks off from work each year for specified family or medical reasons, including “to care for an immediate family member (spouse, child, or parent) with a serious health condition.” Historically, the Department of Labor defined “spouse,” in line with traditional notions of marriage, to mean individuals in a heterosexual marriage and determined a couples’ marital status based on the laws of the state in which they lived. In light of the historic definition of spouse, the FMLA did not apply to couples in same-sex marriages, even those who lived in states which recognized same-sex marriage. However, that all changed in 2013 when the United States Supreme Court struck down the Defense of Marriage Act “DOMA” in the landmark case United States v. Windsor.

After Windsor, the Department of Labor amended its definition of the term “spouse” to include people in same-sex marriages, and in February it officially adopted the “state of celebration” rule. Under the “state of celebration rule” marital status is determined by the law of the state in which a couple is married, not where they reside. Thus, under the final rule, the definition of spouse now “expressly includes individuals in lawfully recognized same-sex marriages, allowing all legally married couples, whether opposite or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they reside.”

While the United States Supreme Court is currently contemplating whether states must recognize same-sex marriages lawfully entered into in other states, the Department of Labor nevertheless plans to enforce the new rule. Of note, four states, Texas, Arkansas, Louisiana, and Nebraska, with State laws prohibiting the recognition of same-sex marriage, have been granted injunctions after claiming that the new rule forced them to violate their State laws.  The Department of Labor has indicated it will not seek enforcement in these four states.


Under the “state of celebration rule” it does not matter whether the state you reside in recognizes same-sex marriage, it only matters that the state where the marriage was entered into recognizes same-sex marriage. And even though the Supreme Court has yet to issue a decision in Obergefell v. Hodges, which will likely clarify various enforcement issues surrounding this new rule, the Department of Labor plans to move forward and enforce the rule as written, except in states with an injunction. 

Employers required to comply with the FLMA need to be aware that employees in same-sex marriages can take “leave” under the FMLA if their “spouse” has a serious health condition.  Employers should also amend any applicable policies to comply with the recent FMLA changes in order to allow eligible employees in same-sex marriages to take leave.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.