On February 25, 2015, the Department of Labor (DOL) issued a Final Rule revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA).  These changes allow FMLA benefits for legally married couples, opposite-sex or same sex, or married under common law regardless of where they presently live. Thus, the focus looks at the law where the marriage was entered into versus the law where the employee presently lives.

Summary of Revisions FMLA Effective March 27, 2015 

29 CFR §§825.102 and 825.122 (b) New Definition of Spouse: Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or
(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Additionally, the following U.S. Department Wage and Hour Division forms have been revised:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency For Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military – Caregiver Leave

If you have a question regarding the above changes or would like to review/update your employee handbook, please contact a member of our employment team: Jim Cowan at jcowan@cowanperry.com, David Perry at dperry@cowanperry.com, Brian Wheeler at bwheeler@cowanperry.com, or Eric Chapman at echapman@cowanperry.com.

CowanPerry PC represents employers throughout the New River Valley and Southwest Virginia, from offices located in Roanoke and Blacksburg.