OPM updates FMLA definition of spouse for federal employees

The Office of Personnel Management (OPM) is finally revising the definition of spouse in its FMLA regulations as a result of the U.S. Supreme Court decision, almost three years ago, in United States v. Windsor, holding section 3 of the Defense of Marriage Act (DOMA) unconstitutional. The new definition replaces the existing definition, which contained language from DOMA that referred to “a legal union between one man and one woman.” The new definition permits federal employees with same-sex spouses to use FMLA leave in the same manner as federal employees with opposite-sex spouses and is effective May 9, 2016.

OPM had issued a memorandum on October 21, 2013, explaining that the definition of spouse used in OPM’s FMLA regulations was no longer valid and that, effective June 26, 2013, an employee in a legally recognized same-sex marriage, regardless of state of residency, could use his or her FMLA leave entitlement in the same manner as an employee with an opposite-sex spouse.

Conforms with DOL definition. The Department of Labor issues regulations for Title I of the FMLA, which covers non-federal employees and certain federal employees not covered under Title II. OPM issues regulations for Title II of the FMLA, which covers most federal employees. OPM regulations are intended to be consistent, to the extent appropriate, with regulations prescribed by the DOL, which published its final regulations on the definition of spouse on February 25, 2015. OPM’s proposed regulations, published on June 23, 2014, at 79 FR 35497, changed the definition of spouse to mirror the definition proposed by DOL, as well as conforming amendments to revise the definition of parent and add a definition for State to align with DOL’s definitions. The final rule makes no substantive changes to the proposed rule.

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