By Kami M. Hoskins

The Department of Labor (DOL) will publish a Final Rule this week revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA).  The changes will allow eligible employees in same-sex marriages to take FMLA leave to care for their spouses or family members, regardless of where the employee resides.  The DOL issues the Final Rule in response to the Supreme Court’s June 2013 decision in U.S. v. Windsor, which held section 3 of The Defense of Marriage Act (DOMA) to be unconstitutional.  Prior to Windsor, the FMLA regulations defined the term “spouse” based on the marriage laws of the state where the employee resides.   Now, the regulations require employers to look to the laws of the state where the employee entered into the marriage.  According to the DOL, the revisions are intended to ensure that spouses in same-sex marriages have the same ability as all spouses to exercise their FMLA rights. 

FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, including certain military family leave provisions.  The effective date for the final rule is March 27, 2015. 

Arizona is one of over 30 states that recognize same-sex marriage.  Employers covered under FMLA should review their employment policies to ensure they are in compliance with the new regulations.

The DOL’s announcement and the text of the Final Rule can be found here: http://www.dol.gov/whd/fmla/spouse/index.htm

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Kami M. Hoskins is an Arizona native dedicated to creating and implementing effective resolutions to complex legal issues for a variety of clients. She focuses her practice on two primary areas: 1) Bankruptcy, Reorganization and Creditors’ Rights Law; and 2) Labor and Employment. Ms. Hoskins is also the Chair of Jennings, Strouss & Salmon’s Diversity Action Committee, and she helps lead the firm’s diversity and inclusion strategic initiatives.

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