Does FMLA apply to same-sex spouses caring for a partner?

What the Law Says

The Family and Medical Leave Act (FMLA) entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons — including to care for a spouse with a serious health condition. After the U.S. Supreme Court’s decision in Obergefell v. Hodges (2015) and subsequent Department of Labor (DOL) rulemaking, the FMLA’s definition of 'spouse' explicitly includes same-sex spouses.

To be eligible for FMLA leave, an employee must have worked for a covered employer for at least 12 months, have worked at least 1,250 hours during the previous 12 months, and work at a location where the employer has at least 50 employees within 75 miles.

The FMLA defines 'spouse' by reference to state law — but following the DOL’s 2015 Final Rule (effective March 27, 2015), the definition was updated to recognize a spouse as 'a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage and same-sex marriage.' This ensures uniform coverage regardless of where the marriage was performed or where the employee lives.

Section 2612(a)(1)(C) specifically authorizes leave 'to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.'

Statutory Text

(a) In general.—An eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: ... (C) to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition;

— 29 U.S.C. § 2612(a)(1)(C) — Leave requirement

What to Do

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