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Secretary of Labor Thomas E. Perez
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WHD Final Rules

of Spouse Under the Family and Medical Leave Act   [2/25/2015]
[PDF]
Federal Register, Volume 80 Issue 37 (Wednesday, February 25, 2015)
[Federal Register Volume 80, Number 37 (Wednesday, February 25, 2015)]
[Rules and Regulations]
[Pages 9989-10001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-03569]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1235-AA09


Definition of Spouse Under the Family and Medical Leave Act

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor's (Department) Wage and Hour Division 
(WHD) revises the regulation defining ``spouse'' under the Family and 
Medical Leave Act of 1993 (FMLA or the Act) in light of the United 
States Supreme Court's decision in United States v. Windsor, which 
found section 3 of the Defense of Marriage Act (DOMA) to be 
unconstitutional.

DATES: This Final Rule is effective March 27, 2015.

FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director of the Division 
of Regulations, Legislation, and Interpretation, U.S. Department of 
Labor, Wage and Hour Division, 200 Constitution Avenue NW., Room S-
3502, Frances Perkins Building, Washington, DC 20210; telephone: (202) 
693-0406 (this is not a toll-free number). Copies of this Final Rule 
may be obtained in alternative formats (large print, braille, audio 
tape or disc), upon request, by calling (202) 693-0675 (this is not a 
toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to 
obtain information or request materials in alternative formats.
    Questions of interpretation and/or enforcement of the agency's 
current regulations may be directed to the nearest WHD district office. 
Locate the nearest office by calling WHD's toll-free help line at (866) 
4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time 
zone, or log onto WHD's Web site for a nationwide listing of WHD 
district and area offices at http://www.dol.gov/whd/america2.htm. 
Please visit http://www.dol.gov/whd for more information and resources 
about the laws administered and enforced by WHD. Information and 
compliance assistance materials specific to this Final Rule can be 
found at: http://www.dol.gov/whd/fmla/spouse/.

SUPPLEMENTARY INFORMATION:

I. Background

A. What the FMLA Provides

    The Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., 
entitles eligible employees of covered employers to take job-protected, 
unpaid leave, or to substitute appropriate accrued paid leave, for up 
to a total of 12 workweeks in a 12-month period for the birth of the 
employee's son or daughter and to care for the newborn child; for the 
placement of a son or daughter with the employee for adoption or foster 
care; to care for the employee's spouse, parent, son, or daughter with 
a serious health condition; when the employee is unable to work due to 
the employee's own serious health condition; or for any qualifying 
exigency arising out of the fact that the employee's spouse, son, 
daughter, or parent is a military member on covered active duty. 29 
U.S.C. 2612. An eligible employee may also take up to 26 workweeks of 
FMLA leave during a ``single 12-month period'' to care for a covered 
servicemember with a serious injury or illness, when the employee is 
the spouse, son, daughter, parent, or next of kin of the servicemember. 
Id.
    FMLA leave may be taken in a block, or under certain circumstances, 
intermittently or on a reduced leave schedule. Id. In addition to 
providing job-protected family and medical leave, employers must also 
maintain any preexisting group health plan coverage for an employee on 
FMLA-protected leave under the same conditions that would apply if the 
employee had not taken leave. 29 U.S.C. 2614. Once the leave period is 
concluded, the employer

[[Page 9990]]

is required to restore the employee to the same or an equivalent 
position with equivalent employment benefits, pay, and other terms and 
conditions of employment. Id. If an employee believes that his or her 
FMLA rights have been violated, the employee may file a complaint with 
the Department of Labor or file a private lawsuit in federal or state 
court. If the employer has violated the employee's FMLA rights, the 
employee is entitled to reimbursement for any monetary loss incurred, 
equitable relief as appropriate, interest, attorneys' fees, expert 
witness fees, and court costs. Liquidated damages also may be awarded. 
29 U.S.C. 2617.
    Title I of the FMLA is administered by the U.S. Department of Labor 
and applies to private sector employers of 50 or more employees, 
private and public elementary and secondary schools, public agencies, 
and certain federal employers and entities, such as the U.S. Postal 
Service and Postal Regulatory Commission. Title II is administered by 
the U.S. Office of Personnel Management and applies to civil service 
employees covered by the annual and sick leave system established under 
5 U.S.C. Chapter 63 and certain employees covered by other federal 
leave systems.

B. Who the Law Protects

    The FMLA generally covers employers with 50 or more employees. To 
be eligible to take FMLA leave, an employee must meet specified 
criteria, including employment with a covered employer for at least 12 
months, performance of a specified number of hours of service in the 12 
months prior to the start of leave, and work at a location where there 
are at least 50 employees within 75 miles.

C. Regulatory History

    The FMLA required the Department to issue initial regulations to 
implement Title I and Title IV of the FMLA within 120 days of enactment 
(by June 5, 1993) with an effective date of August 5, 1993. The 
Department published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register on March 10, 1993. 58 FR 13394. The Department 
received comments from a wide variety of stakeholders, and after 
considering these comments the Department issued an Interim Final Rule 
on June 4, 1993, effective August 5, 1993. 58 FR 31794.
    After publication, the Department invited further public comment on 
the interim regulations. 58 FR 45433. During this comment period, the 
Department received a significant number of substantive and editorial 
comments on the interim regulations from a wide variety of 
stakeholders. Based on this second round of public comments, the 
Department published final regulations to implement the FMLA on January 
6, 1995. 60 FR 2180. The regulations were amended February 3, 1995 (60 
FR 6658) and March 30, 1995 (60 FR 16382) to make minor technical 
corrections. The final regulations went into effect on April 6, 1995.
    The Department published a Request for Information (RFI) in the 
Federal Register on December 1, 2006 requesting public comments on 
experiences with the FMLA (71 FR 69504) and issued a report on the RFI 
responses on June 28, 2007 (72 FR 35550). The Department published an 
NPRM in the Federal Register on February 11, 2008 proposing changes to 
the FMLA's regulations based on the Department's experience 
administering the law, two Department of Labor studies and reports on 
the FMLA issued in 1996 and 2001, several U.S. Supreme Court and lower 
court rulings on the FMLA, and a review of the comments received in 
response to the 2006 RFI. 73 FR 7876. The Department also sought 
comments on the military family leave statutory provisions enacted by 
the National Defense Authorization Act for Fiscal Year 2008. In 
response to the NPRM, the Department received thousands of comments 
from a wide variety of stakeholders. The Department issued a Final Rule 
on November 17, 2008, which became effective on January 16, 2009. 73 FR 
67934.
    The Department published an NPRM in the Federal Register on 
February 15, 2012 primarily focused on changes to the FMLA's 
regulations to implement amendments to the military leave provisions 
made by the National Defense Authorization Act for Fiscal Year 2010 and 
to the employee eligibility requirements for airline flight crew 
employees made by the Airline Flight Crew Technical Corrections Act. 77 
FR 8960. The Department issued a Final Rule on February 6, 2013, which 
became effective on March 8, 2013. 78 FR 8834.
    The Department commenced the current rulemaking by publishing an 
NPRM in the Federal Register on June 27, 2014 (79 FR 36445), inviting 
public comment for 45 days. The comment period closed on August 11, 
2014. The Department received 77 comment submissions on the NPRM, 
representing over 18,000 individuals. Specific comments are discussed 
in detail below.

II. FMLA Spousal Leave

    The FMLA provides eligible employees with leave to care for a 
spouse in the following situations: (1) When needed to care for a 
spouse due to the spouse's serious health condition; (2) when needed to 
care for a spouse who is a covered servicemember with a serious illness 
or injury; and (3) for a qualifying exigency related to the covered 
military service of a spouse. The FMLA defines ``spouse'' as ``a 
husband or wife, as the case may be.'' 29 U.S.C. 2611(13). In the 1993 
Interim Final Rule, the Department defined spouse as ``a husband or 
wife as defined or recognized under state law for purposes of marriage, 
including common law marriage in states where it is recognized.'' 58 FR 
31817, 31835 (June 4, 1993). In commenting on the Interim Final Rule, 
both the Society for Human Resource Management and William M. Mercer, 
Inc., questioned which state law would apply when an employee resided 
in one State but worked in another State. 60 FR 2190. In response to 
these comments, the 1995 Final Rule clarified that the law of the State 
of the employee's residence would control for determining eligibility 
for FMLA spousal leave. Id. at 2191. Accordingly, since 1995 the FMLA 
regulations have defined spouse as a husband or wife as defined or 
recognized under state law and the regulation has looked to the law of 
the State where the employee resides. Sec. Sec.  825.102, 825.122(a) 
(prior to the 2013 Final Rule the same definition appeared at 
Sec. Sec.  825.113(a) and 825.800). The definition has also included 
common law marriage in States where it is recognized. Id.
    The Defense of Marriage Act (DOMA) was enacted in 1996. Public Law 
104-199, 110 Stat. 2419. Section 3 of DOMA restricted the definitions 
of ``marriage'' and ``spouse'' for purposes of federal law, 
regulations, and administrative interpretations: ``the word `marriage' 
means only a legal union between one man and one woman as husband and 
wife, and the word `spouse' refers only to a person of the opposite sex 
who is a husband or a wife.'' 1 U.S.C. 7. For purposes of employee 
leave under the FMLA, the effect of DOMA was to limit the availability 
of FMLA leave based on a spousal relationship to opposite-sex 
marriages. While the Department did not revise the FMLA regulatory 
definition of ``spouse'' to incorporate DOMA's restrictions, in 1998 
WHD issued an opinion letter that addressed, in part, the limitation 
section 3 of DOMA imposed on the availability of FMLA spousal leave.

    Under the FMLA (29 U.S.C. 2611(13)), the term ``spouse'' is 
defined as a husband or wife, which the regulations (29 CFR

[[Page 9991]]

825.113(a)) clarified to mean 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 in States 
where it is recognized. The legislative history confirms that this 
definition was adapted to ensure that employers were not required to 
grant FMLA leave to an employee to care for an unmarried domestic 
partner. (See Congressional Record, S 1347, February 4, 1993). 
Moreover, the subsequently enacted Defense of Marriage Act of 1996 
(DOMA) (Pub. L. 104-199) establishes a Federal definition of 
``marriage'' as only a legal union between one man and one woman as 
husband and wife, and a ``spouse'' as only a person of the opposite 
sex who is a husband or wife. Because FMLA is a Federal law, it is 
our interpretation that only the Federal definition of marriage and 
spouse as established under DOMA may be recognized for FMLA leave 
purposes.

Opinion Letter FMLA-98 (Nov. 18, 1998). WHD also referenced DOMA's 
limitations on spousal FMLA leave in a number of sub-regulatory 
guidance documents posted on its Web site.
    On June 26, 2013, the Supreme Court held in United States v. 
Windsor, 133 S. Ct. 2675 (2013), that section 3 of DOMA was 
unconstitutional under the Fifth Amendment. It concluded that this 
section ``undermines both the public and private significance of state-
sanctioned same-sex marriages'' and found that ``no legitimate purpose 
overcomes'' section 3's ``purpose and effect to disparage and to injure 
those whom the State, by its marriage laws, sought to protect[.]'' Id. 
at 2694-96.
    Because of the Supreme Court's holding in Windsor that section 3 of 
DOMA is unconstitutional, the Department is no longer prohibited from 
recognizing same-sex marriages as a basis for FMLA spousal leave. 
Accordingly, as of June 26, 2013, under the current FMLA regulatory 
definition of spouse, an eligible employee in a legal same-sex marriage 
who resides in a State that recognizes the employee's marriage may take 
FMLA spousal leave. On August 9, 2013, the Department updated its FMLA 
sub-regulatory guidance to remove any references to the restrictions 
imposed by section 3 of DOMA and to expressly note that the regulatory 
definition of spouse covers same-sex spouses residing in States that 
recognize such marriages. Similarly, as a result of the Windsor 
decision, the interpretation expressed in Opinion Letter FMLA-98 of the 
definition of spouse as a person of the opposite sex as defined in DOMA 
is no longer valid.

III. Summary of Comments

    The Department commenced this rulemaking by publishing an NPRM on 
June 27, 2014. 79 FR 36445. In the NPRM the Department proposed to 
change the definition of spouse to look to the law of the jurisdiction 
in which the marriage was entered into (including for common law 
marriages), as opposed to the law of the State in which the employee 
resides, and to expressly reference the inclusion of same-sex marriages 
in addition to common law marriages. The Department proposed to change 
the definition of spouse to ensure that all legally married couples, 
whether opposite-sex or same-sex, will have consistent federal family 
leave rights regardless of where they live. The Department received 77 
comment submissions on the NPRM, representing over 18,000 individuals, 
which are available for review at the Federal eRulemaking Portal, 
www.regulations.gov, Docket ID WHD-2014-0002. The vast majority of 
those individuals submitted identical letters, which expressed strong 
support for the proposed rule, that were part of a comment campaign by 
the Human Rights Campaign (HRC). In addition, hundreds of commenters 
submitted nearly identical but individualized letters, which also 
strongly supported the proposed rule, as part of the HRC comment 
campaign. Beyond these campaign comments, the majority of the comments 
were supportive of the proposed rule. Comments were received from 
advocacy organizations, labor organizations, employer associations, a 
state agency, United States Senators, and private individuals. The 
Department received one comment after the close of the comment period; 
the comment was not considered by the Department. A number of the 
comments received addressed issues that are statutory and therefore 
beyond the scope or authority of the proposed regulations, such as 
expanding the coverage of the Act to include domestic partners and 
parents in law. Because addressing these issues would require statutory 
changes, these comments are not addressed in this Final Rule. Moreover, 
the Department has previously issued guidance on some of these issues. 
See, e.g., Opinion Letter FMLA-98 (Nov. 18, 1998) (the FMLA does not 
cover absences to care for a domestic partner with a serious health 
condition) \1\; Opinion Letter FMLA-96 (June 4, 1998) (``parent'' as 
referenced in the Act does not include a parent-in-law).
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    \1\ As noted above, the portion of Opinion Letter FMLA-98 that 
relied on DOMA's definition of spouse and marriage is now invalid in 
light of Windsor. The remaining portion of Opinion Letter FMLA-98, 
however, continues to be valid. Specifically, the opinion letter 
noted that the FMLA's legislative history indicated that the 
definition of spouse was meant to ensure that employers would not be 
required to provide leave to care for an employee's domestic 
partner.
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    The Department has carefully considered all of the relevant and 
timely comments. The major comments received on the proposed regulatory 
changes are summarized below, together with a discussion of the 
Department's responses. The Final Rule adopts the changes to the 
regulations as proposed in the NPRM.

IV. Analysis of the Proposed Changes to the FMLA Regulations

    In the NPRM the Department proposed to change the regulatory 
definition of spouse in Sec. Sec.  825.102 and 825.122(b) to mean the 
other person with whom an individual entered into marriage. The 
Department proposed to look to the law of the jurisdiction in which the 
marriage was entered into (including for common law marriages), as 
opposed to the law of the State in which the employee resides, and to 
expressly reference the inclusion of same-sex marriages in addition to 
common law marriages. The Department also proposed to include in the 
definition same-sex marriages entered into abroad by including 
marriages entered into outside of any State as long as the marriage was 
legally valid in the place where it was entered into and could have 
been entered into legally in at least one State.
    The proposed definition included the statutory language defining 
spouse as a husband or wife but made clear that these terms included 
all individuals in lawfully recognized marriages. As noted in the NPRM, 
the Department is aware that the language surrounding marriage is 
evolving and that not all married individuals choose to use the 
traditional terms of husband or wife when referring to their spouse. 79 
FR 36448. The Department intended the proposed definition to cover all 
spouses in legally valid marriages as defined in the regulation 
regardless of whether they use the terms husband or wife. The 
Department adopts the definition of spouse as proposed.
    The Department is moving from a state of residence rule to a rule 
based on the jurisdiction where the marriage was entered into (place of 
celebration) to ensure that all legally married couples, whether 
opposite-sex or same-sex, will have consistent federal family leave 
rights regardless of where they live. 79 FR 36448. The Department noted 
in the proposed rule that while many States and foreign countries 
currently legally recognize same-sex marriage, not all do. As of 
February 13, 2015, thirty-two States and the District of Columbia

[[Page 9992]]

extend the right to marry to both same-sex and opposite-sex couples 
(Alaska, Arizona, California, Colorado, Connecticut, Delaware, District 
of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, 
Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New 
Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode 
Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, 
and Wyoming).\2\ Additionally, as of February 13, 2015, eighteen 
countries extend the right to marry to both same-sex and opposite-sex 
couples (Argentina, Belgium, Brazil, Canada, Denmark, England/Wales/
Scotland, Finland, France, Iceland, Luxembourg, The Netherlands, New 
Zealand, Norway, Portugal, Spain, South Africa, Sweden, and Uruguay). 
The Department notes that this list of States and countries currently 
recognizing same-sex marriage does not limit the revised definition of 
spouse in any way. Legal recognition of same-sex marriage has expanded 
rapidly and the Department anticipates that the number of States and 
countries recognizing same-sex marriage will continue to grow.
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    \2\ On January 16, 2015, the Supreme Court granted review of the 
Sixth Circuit's decision upholding state law bans on same-sex 
marriage in Kentucky, Michigan, Ohio, and Tennessee. See DeBoer v. 
Snyder, No. 14-571, 2015 WL 213650 (S. Ct. Jan. 16, 2015). The case 
is currently pending before the Supreme Court.
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    The vast majority of commenters, including the HRC letter-writing 
campaign commenters, applauded the Department's proposed use of a place 
of celebration rule. As the Maine Women's Lobby, A Better Balance, the 
9to5 National Association of Working Women, the American Federation of 
Teachers, the North Carolina Justice Center, the Women's Law Project, 
the Religious Action Center for Reform Judaism, and many other 
commenters noted, under a state of residence rule, employees in legally 
valid same-sex marriages who live in a State that does not recognize 
their marriage are often forced to risk their jobs and financial 
wellbeing when they need time off to care for their ill or injured 
spouse or to address qualifying exigencies relating to their spouse's 
military service. These commenters stated that a place of celebration 
rule will provide security to all legally married same-sex spouses in 
knowing that they will be able to exercise their FMLA rights when the 
need arises. An individual similarly commented that, as the mother of a 
daughter in a same-sex marriage, she supported the rule because it 
would provide comfort to her as a parent who lives far from her 
daughter in knowing that, should her daughter need care, her daughter's 
same-sex spouse would be able to care for the daughter without having 
to worry that she would lose her job. Commenters such as the Family 
Equality Council (Family Equality), the National Partnership for Women 
& Families (National Partnership), the National Minority AIDS Council 
(NMAC), and twenty-three United States Senators who submitted a joint 
comment, also noted that nationally consistent and uniform access to 
leave as provided by the proposed rule will further the original 
purpose of the FMLA.
    Many commenters, including the National Center for Transgender 
Equality, Family Values @Work, the National Employment Lawyers 
Association, the National Partnership, the Feminist Majority 
Foundation, the National Council of Jewish Women, and Equal Rights 
Advocates approved of the proposed place of celebration rule because it 
would provide certainty to same-sex couples regarding their FMLA leave 
rights, which would encourage worker mobility. The National Partnership 
commented that ``[g]eographic mobility is a significant part of 
economic mobility for American workers . . . . By ensuring that 
[lesbian, gay, bisexual, and transgender (LGBT)] couples receive the 
same federal family leave protections if they move to a state that does 
not recognize their marriage, the rule makes it easier for workers to 
accept promotions or new jobs . . . .'' This commenter also observed 
that the rule would provide important protections for LGBT military 
families who relocate due to military assignment.
    Commenters also noted that a place of celebration rule will benefit 
employers as well as employees. The National Partnership observed that, 
by securing federal family leave rights to legally married same-sex 
spouses regardless of the State in which they reside, employers will be 
able to fill job positions with the most qualified workers. The 
National Business Group on Health expressed support for this rule 
because it will reduce the administrative burden on employers that 
operate in more than one State or have employees who move between 
States. The National Consumers League and the National Women's Law 
Center, among other commenters, echoed this observation that a place of 
celebration rule will simplify FMLA administration for employers that 
operate in multiple States.
    The Department concurs with these comments. A place of celebration 
rule provides consistent federal family leave rights for legally 
married couples regardless of the State in which they reside, thus 
reducing barriers to the mobility of employees in same-sex marriages in 
the labor market and ensuring employees in same-sex marriages will be 
able to exercise their FMLA leave rights. Moreover, such a rule also 
reduces the administrative burden on employers that operate in more 
than one State, or that have employees who move between States with 
different marriage recognition rules; such employers will not have to 
consider the employee's state of residence and the laws of that State 
in determining the employee's eligibility for FMLA leave.
    Several commenters were appreciative that the proposed place of 
celebration rule would be consistent with the interpretations adopted 
by other federal government agencies, such as the Department of Defense 
and the Internal Revenue Service, as this would create greater 
uniformity for employees and employers. See, e.g., the Legal Aid 
Employment Law Center, the American Federation of State, County, and 
Municipal Employees, AFL-CIO, the Fenway Institute at Fenway Health. 
The Society for Human Resource Management, the U.S. Chamber of 
Commerce, and the College and University Professional Association for 
Human Resources, which submitted a joint comment (collectively SHRM), 
appreciated the use by multiple federal agencies of a place of 
celebration rule because ``consistent definitions are of tremendous 
importance and value for those seeking to comply with the FMLA.'' The 
Department agrees with these comments. In addition, as stated in the 
NPRM, the Department believes that, in relation to Department of 
Defense policy, it is appropriate whenever possible to align the 
availability of FMLA military leave with the availability of other 
marriage-based benefits provided by the Department of Defense. 79 FR 
36448.
    SHRM, the U.S. Conference of Catholic Bishops (USCCB), and the 
National Automobile Dealers Association (NADA) expressed concern 
regarding the potential burden on employers to know the marriage laws 
of jurisdictions beyond those in which they operate. NADA and SHRM 
requested that the Department provide guidance on how to determine if a 
same-sex marriage is legally valid, perhaps with a chart on the 
Department's Web site with current information on the status of same-
sex marriage in the States and foreign jurisdictions.

[[Page 9993]]

    The Department does not believe that further guidance on state and 
foreign marriage laws is necessary at this time. Employers do not need 
to know the marriage laws of all 50 States and all foreign countries. 
Rather, employers will only need to know the same-sex marriage laws of 
a specific State or country in situations where an employee has 
requested leave to care for a spouse, child, or parent and the basis 
for the family relationship is a same-sex marriage. In such a 
situation, for purposes of confirming the qualifying basis of the 
leave, the employer would need to know the marriage laws of only the 
individual State or country where the marriage at issue was entered 
into. The Department believes that making this determination will not 
be burdensome. There are a number of organizations focused on providing 
up-to-date information on the status of same-sex marriages in the 50 
States within the United States and foreign jurisdictions. Some 
examples of organizations that provide this information include http://www.freedomtomarry.org/states/ and http://gaymarriage.procon.org/. 
Because such information is readily available, the Department does not 
believe that it is necessary at this time to provide such information 
on its own Web site.
    A few commenters addressed common law marriages as referenced in 
the proposed definition of spouse. Family Equality questioned whether 
the wording of the proposed definition could be interpreted to exclude 
an individual in a same-sex common law marriage. This commenter 
requested that the definition be modified to make clear that same-sex 
common law spouses are included in the definition. SHRM and the Food 
Marketing Institute (FMI) expressed concern that knowing the common law 
marriage standards of numerous States will be particularly burdensome 
for employers.
    The Department has retained the proposed language regarding common 
law marriage in the Final Rule. The Department believes that the 
language regarding common law marriage in the definition of ``spouse'' 
in the Final Rule will not result in a significant change in employers' 
administration of the FMLA. Common law marriages have been included in 
the definition of spouse under the FMLA since 1995. Sec.  825.113(a) 
(1995).\3\ While the majority of States do not permit the formation of 
common law marriages within their borders, these States generally will 
recognize a common law marriage that was validly entered into in 
another State. Therefore, under the current regulation, looking to the 
law of the State in which the employee resides to determine the 
existence of a common law marriage will often require looking, in turn, 
to the common law marriage standards of another State. For example, 
under the current regulation, an FMLA-eligible employee of a covered 
employer who validly entered into an opposite sex common law marriage 
in Alabama, a State that permits the formation of common law marriages, 
and later relocated to North Dakota, a State that does not permit the 
formation of common law marriages, would be considered to have a legal 
marriage and would be entitled to FMLA spousal leave.
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    \3\ This definition was not changed in the 2008 and 2013 
rulemakings. See 73 FR 67934; 78 FR 8834.
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    The only change from the current definition of spouse to the 
definition in the Final Rule in regards to common law marriage is that 
in States that permit same-sex common law marriages, employees who have 
entered into a same-sex common law marriage in those States will now be 
eligible to take FMLA spousal leave regardless of the State in which 
they reside. In response to Family Equality's comment above, the 
Department believes that the language used in the proposed definition 
and adopted in the Final Rule already encompasses spouses in same-sex 
common law marriages.
    Moreover, under both the current and revised definitions of spouse, 
an employer would only need to know the common law marriage standards 
for a particular State for confirmation purposes in the event that an 
eligible employee requests FMLA leave to care for a spouse, child, or 
parent and the basis for the family relationship is a common law 
marriage. The Department does not believe that this will be burdensome 
and notes that there are organizations that provide information to the 
public on the status of common law marriages in the 50 States within 
the United States. Some examples of organizations that provide this 
information include http://www.nolo.com/legal-encyclopedia/common-law-marriage-faq-29086-2.html and http://usmarriagelaws.com/search/united_states/common_law_marriage/. Finally, the Department notes that 
in its experience, the inclusion of common law marriages within the 
definition of spouse has not caused problems in the last 20 years and 
the Department does not anticipate that the Final Rule's recognition of 
common law marriages based on the place of celebration will result in 
any significant problems.
    A few commenters addressed the documentation that employers may 
require from employees to confirm a family relationship. SHRM 
recommended that the Department clarify the type of proof an employer 
may require to confirm that an employee has a valid marriage, and 
permit employers to ask for documentation of proof of marriage on a 
case-by-case basis. FMI commented that it will be burdensome for 
employers to determine whether a common law marriage is valid, and 
requested guidance on how to confirm the existence of a common law 
marriage. Due to these concerns, this commenter recommended that the 
definition of spouse be revised to apply only to those who have a 
valid, government-issued document recognizing the marriage, such as a 
marriage certificate, court order, or letter from a federal agency such 
as the Social Security Administration. The National Women's Law Center 
urged the Department to modify the regulation at Sec.  825.122(k) to 
require that employers request documentation of a family relationship 
in a consistent and non-discriminatory manner so that employees in 
same-sex marriages are not singled out with special burdens when they 
attempt to exercise their FMLA rights.
    The Department declines to modify the regulation at Sec.  
825.122(k). That regulation permits employers to require employees who 
take leave to care for a family member to provide reasonable 
documentation of the family relationship. Reasonable documentation may 
take the form of either a simple statement from the employee or 
documentation such as a birth certificate or court document.
    In response to the comments, the Department believes that the 
current regulation adequately addresses the nature of the documentation 
that employers may require. An employee may satisfy an employer's 
requirement to confirm a family relationship by providing either a 
simple statement asserting that the requisite family relationship 
exists, or documentation such as a child's birth certificate, a court 
document, etc. It is the employee's choice whether to provide a simple 
statement or another type of documentation. Thus, in all cases, a 
simple statement of family relationship is sufficient under the 
regulation to satisfy the employer's request. In response to FMI's 
comment, the Department does not believe that it is necessary or that 
it would be appropriate to require government-issued documentation to 
confirm common law marriages when an employee can document all other

[[Page 9994]]

marriages with a simple statement. In response to SHRM's and the 
National Women's Law Center's comments, the Department notes that the 
change to a place of celebration rule in the definition of spouse does 
not alter the instances in which an employer can require an employee to 
confirm a family relationship, nor does it alter how an employee can do 
so. Employers have the option to request documentation of a family 
relationship but are not required to do so in all instances. Employers 
may not, however, use a request for confirmation of a family 
relationship in a manner that interferes with an employee's exercise or 
attempt to exercise the employee's FMLA rights. See 29 U.S.C. 2615(a). 
The Department also notes that if an employee has already submitted 
proof of marriage to the employer for some other purpose, such as 
obtaining health care benefits for the employee's spouse, such proof is 
sufficient to confirm the family relationship for purposes of FMLA 
leave. Lastly, the Department notes that where an employee chooses to 
satisfy a request for documentation of family relationship with a 
simple statement, the employer may require that such statement be 
written.
    Two commenters raised concerns about a tension between the proposed 
definition and state laws prohibiting the recognition of same-sex 
marriages. USCCB commented that it believed the proposed definition of 
spouse is ``at odds'' with the Supreme Court's decision in Windsor 
because the definition does not defer to the laws of the States that 
define marriage as the union of one man and one woman. The South Dakota 
Department of Labor and Regulation commented that same-sex marriages 
are not recognized or valid under the South Dakota Constitution.
    The Department believes that using a place of celebration rule in 
the definition of spouse under the FMLA is consistent with the Court's 
decision in Windsor. The FMLA is a federal law that entitles eligible 
employees to take unpaid, job-protected leave for qualifying reasons, 
and the Final Rule's definition of spouse simply defines a familial 
relationship that may be the basis of an employee's qualifying reason 
to take leave. The Final Rule does not require States to recognize or 
give effect to same-sex marriages or to provide any state benefit based 
on a same-sex marriage. The Final Rule impacts States only in their 
capacity as employers and merely requires them to provide unpaid FMLA 
leave to eligible employees based on a federal definition of spouse. 
The Department notes that, after Windsor, the current definition of 
spouse already requires States in their capacity as employers to 
provide unpaid FMLA leave to employees in same-sex marriages if the 
employees reside in a different State that recognizes same-sex 
marriages. Moreover, the Department believes that defining the term 
spouse to include all legally married couples best serves the FMLA's 
goal of promoting ``the stability and economic security of families,'' 
and the ``national interests in preserving family integrity,'' 29 
U.S.C. 2601, because the need to care for a spouse does not differ 
based on the gender of the spouses.
    The Department noted in the NPRM that the proposed change to a 
place of celebration rule for the definition of spouse under the FMLA 
would also have some impact beyond spousal leave. 79 FR 36448. 
Specifically, the Department noted that under the Department's proposed 
rule, an employee in a legal same-sex marriage would be able to take 
leave to care for a stepchild (i.e., the employee's same-sex spouse's 
child) to whom the employee does not stand in loco parentis. Id. 
Similarly, an employee whose parent is in a legal same-sex marriage 
would be able to take leave to care for the parent's same-sex spouse 
(i.e., the employee's stepparent) who did not stand in loco parentis to 
the employee when the employee was a child. Id.
    Several commenters addressed the interplay between the proposed 
rule and the Administrator's Interpretation FMLA 2010-3 (June 22, 2010) 
that addresses in loco parentis. See, e.g., HRC, the HRC comment 
campaign, the National Gay and Lesbian Task Force (Task Force), the 
National Center for Lesbian Rights, the Statewide Parent Advocacy 
Network and Family Voices. These commenters stated that basing an 
employee's ability to take leave to care for a child on the employee's 
same-sex marriage could put the employee at risk of losing the ability 
to take leave to care for the child should the marriage dissolve. These 
commenters stated that recognizing an employee as standing in loco 
parentis, as the Administrator's Interpretation FMLA 2010-3 does, 
ensures that the employee who stands in loco parentis to a child will 
retain the ability to take leave to care for the child despite 
dissolution of the marriage. Therefore, the commenters requested that 
the Department clarify that this rule will not affect the in loco 
parentis Administrator's Interpretation both in how parents are 
determined to stand in loco parentis and in recognizing that more than 
two adults may stand in loco parentis to a child. The Department 
recognizes that the existence of an in loco parentis relationship, 
using the standards set out in Administrator's Interpretation FMLA 
2010-3, is an important basis for an employee to take leave to care for 
a child. The Department notes that it has consistently recognized the 
eligibility of employees to take leave to care for a child of the 
employee's same-sex partner (whether the employee and the partner are 
married or not) provided that the employee meets the in loco parentis 
requirement of providing day-to-day care or financial support for the 
child. Id.; see Administrator's Interpretation FMLA 2010-3 (June 22, 
2010). For example, where an employee and the employee's same-sex 
spouse provide day-to-day care for the same-sex spouse's biological 
child, if the marriage dissolves but the employee continues to have an 
in loco parentis relationship with the child, the employee would be 
able to take leave to care for the child notwithstanding the 
dissolution of the marriage.
    The Department did not intend for the proposed rule to have any 
impact on the standards for in loco parentis set out in the 
Administrator's Interpretation and this Final Rule has no impact on the 
standards for determining the existence of an in loco parentis 
relationship set out in Administrator's Interpretation FMLA 2010-3. 
Rather, the place of celebration rule means that employees in same-sex 
marriages, regardless of the State in which they reside, do not need to 
establish the requirements for in loco parentis for their spouse's 
child (the employee's stepchild) in order to take leave to care for the 
child. Only one type of relationship need apply for an employee to 
satisfy the requisite family relationship under the FMLA. See 825.102, 
which defines ``son or daughter'' to include a stepchild; see also 
825.122(d), 825.122(h), and 825.122(i). Thus, the place of celebration 
rule expands the basis for an employee to take leave to care for a 
child.
    A few commenters also expressed concern about the regulatory 
definition of ``parent'' in Sec.  825.122(c), which provides that a 
parent means a biological, adoptive, step or foster father or mother, 
or any other individual who stood in loco parentis to the employee when 
the employee was a son or daughter as defined in paragraph (d) of this 
section.\4\ These commenters suggested that, as currently worded, the 
definition could be read to imply either that a particular adult may be

[[Page 9995]]

recognized as a biological, adoptive, step, or foster parent, or as a 
person who stood in loco parentis, but not both, or that a biological, 
adoptive, step, or foster parent must meet the criteria of in loco 
parentis. See, e.g., NMAC, HRC, Family Equality, Task Force. These 
commenters requested that the Department modify the definition of 
parent to avoid such misinterpretation.
---------------------------------------------------------------------------

    \4\ While the commenters cited only to Sec.  825.122(c), this 
same definition of parent is contained in Sec.  825.102.
---------------------------------------------------------------------------

    The Department declines to modify the definition of parent as 
suggested. The Department believes that the definition of parent as 
currently worded is not causing confusion. Nonetheless, the Department 
understands that further clarification may be useful. As an initial 
matter, the Department notes that the definition of parent in Sec.  
825.122(c) is relevant only to instances of an employee needing FMLA 
leave to care for a parent or to attend to a qualifying exigency 
arising out of the parent's military service. It is not relevant to 
instances of an employee needing to take leave to care for the 
employee's child. The regulatory definition of parent lists various 
types of parents, separated by commas. Sec. Sec.  825.102, 825.122(c). 
The term ``any other individual who stood in loco parentis to the 
employee when the employee was a son or daughter as defined in 
paragraph (d) of this section'' is set off by a comma from the list of 
other types of parents (i.e., ``biological, adoptive, step or foster 
father or mother''). By setting the phrase off by a comma, the 
Department believes it is clear that in loco parentis applies only to 
``any other individual''; it does not apply to a ``biological, 
adoptive, step or foster father or mother.'' When an employee seeks 
leave to care for a biological, adoptive, step, or foster parent, there 
is no need to inquire whether the parent stood in loco parentis to the 
employee; that parent automatically satisfies the definition of 
``parent'' for FMLA purposes and an analysis of whether the in loco 
parentis requirements are met is not necessary.
    Two commenters addressed the publication and effective date of the 
Final Rule. FMI requested that the Department delay publication of the 
Final Rule until the Department provides guidance on how employers can 
confirm the existence of an employee's common law marriage. The 
National Business Group on Health requested that the Department delay 
the effective date of the Final Rule for at least 12 months to allow 
employers time to modify their policies and procedures. The Department 
does not believe that any delay is warranted given the limited scope of 
this Final Rule. Therefore, the Final Rule will become effective 30 
days after publication.
    Lastly, notwithstanding the Final Rule's definition of spouse as 
including all legally married couples according to the law of the place 
of celebration, an employer may, of course, offer an employment benefit 
program or plan that provides greater family or medical leave rights to 
employees than the rights established by the FMLA. See Sec.  
825.700(a). FMLA regulations state: ``[N]othing in the Act is intended 
to discourage employers from adopting or retaining more generous leave 
policies.'' Sec.  825.700(b).

V. Conforming Changes

    Minor editorial changes were proposed to Sec. Sec.  825.120, 
825.121, 825.122, 825.127, 825.201 and 825.202 to make references to 
husbands and wives, and mothers and fathers gender neutral where 
appropriate so that they apply equally to opposite-sex and same-sex 
spouses. The Department proposed using the terms ``spouses'' and 
``parents,'' as appropriate, in these regulations. As stated in the 
NPRM, these editorial changes do not change the availability of FMLA 
leave but simply clarify its availability for all eligible employees 
who are legally married. 79 FR 36449. The Department received no 
comments on these changes and adopts them as proposed.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require that the 
Department consider an agency's need for its information collections, 
their practical utility, the impact of paperwork and other information 
collection burdens imposed on the public, and how to minimize those 
burdens. Under the PRA, an agency may not collect or sponsor the 
collection of information, nor may it impose an information collection 
requirement unless it displays a currently valid Office of Management 
and Budget (OMB) control number. See 5 CFR 1320.8(b)(3)(vi).
    OMB has assigned control number 1235-0003 to the FMLA information 
collections. As required by the PRA (44 U.S.C. 3507(d)), the Department 
has submitted these proposed information collection amendments to OMB 
for its review. The Department will publish a notice in the Federal 
Register to announce the result of the OMB review.
    Summary: The Department seeks to minimize the paperwork burden for 
individuals, small businesses, educational and nonprofit institutions, 
federal contractors, state, local, and tribal governments, and other 
persons resulting from the collection of information by or for the 
agency. The PRA typically requires an agency to provide notice and seek 
public comments on any proposed collection of information contained in 
a proposed rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
    The Department's Final Rule revises the regulation defining 
``spouse'' under the FMLA, in light of the United States Supreme 
Court's holding that section 3 of the Defense of Marriage Act is 
unconstitutional. Amending the definition of spouse to include all 
legally married spouses as recognized under state law for purposes of 
marriage in the State where 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, expands the availability of FMLA leave to 
legally married same-sex spouses regardless of the State in which they 
reside. Under the revised definition of spouse, eligible employees are 
able to take FMLA leave based on a same-sex marital relationship 
regardless of the state in which they reside.
    In light of the June 26, 2013 Windsor decision and under the 
current regulation, employees in same-sex marriages have the right to 
take FMLA leave based on their same-sex marriage only if they reside in 
a State that recognizes same-sex marriage. In contrast, under the Final 
Rule's place of celebration rule, all eligible employees in same-sex 
marriages will be able to take FMLA leave based on their marital 
relationship, regardless of their state of residence. These information 
collection amendments update the burden estimates to include same-sex 
couples nationwide--both employees whom Windsor rendered eligible to 
take FMLA leave under the current regulation and employees who will be 
able to take such leave due to the changes in this Final Rule.
    Covered, eligible employees in same-sex marriages are already 
eligible to take FMLA leave for certain FMLA qualifying reasons (e.g., 
the employee's own serious health condition, the employee's parent's or 
child's serious health condition, etc.). This Final Rule does not 
increase the number of employees eligible to take FMLA leave; rather, 
it allows employees in same-sex marriages to take FMLA leave on the 
basis of their marriage regardless of their state of residence, in 
addition to the other reasons for which they were already able to take 
leave. That is, FMLA coverage and eligibility provisions are unchanged 
by this Final Rule, and employees who were not

[[Page 9996]]

previously eligible and employed by a covered establishment do not 
become eligible as a result of this rule.
    Accordingly, the Department developed an estimate that focuses on 
FMLA leave that employees can currently and will be able to take to 
care for a family member based on a same-sex marital relationship. The 
final regulations, which do not substantively alter the FMLA but 
instead allow FMLA leave to be taken on the basis of an employee's 
same-sex marriage regardless of their state of residence, will create 
additional burdens on some of the information collections.
    Circumstances Necessitating Collection: The FMLA, 29 U.S.C. 2601, 
et seq., requires private sector employers who employ 50 or more 
employees, all public and private elementary schools, and all public 
agencies to provide up to 12 weeks of unpaid, job-protected leave 
during any 12-month period to eligible employees for certain family and 
medical reasons (i.e., for birth of a son or daughter and to care for 
the newborn child; for placement with the employee of a son or daughter 
for adoption or foster care; to care for the employee's spouse, son, 
daughter, or parent with a serious health condition; because of a 
serious health condition that makes the employee unable to perform the 
functions of the employee's job; to address qualifying exigencies 
arising out of the deployment of the employee's spouse, son, daughter, 
or parent to covered active duty in the military), and up to 26 
workweeks of unpaid, job-protected leave during a single 12-month 
period to an eligible employee who is the spouse, son, daughter, 
parent, or next of kin of a covered servicemember with a serious injury 
or illness for the employee to provide care for the servicemember. FMLA 
section 404 requires the Secretary of Labor to prescribe such 
regulations as necessary to enforce this Act. 29 U.S.C. 2654.
    The Department's authority for the collection of information and 
the required disclosure of information under the FMLA stems from the 
statute and/or the implementing regulations.
    Purpose and Use: No WHD forms or other information collections are 
changed by this Final Rule, except in when they may apply. While the 
use of the Department's FMLA forms is optional, the regulations require 
employers and employees to make the third-party disclosures that the 
forms cover. The FMLA third-party disclosures ensure that both 
employers and employees are aware of and can exercise their rights and 
meet their respective obligations under the FMLA.
    Technology: The regulations prescribe no particular order or form 
of records. See Sec.  825.500(b). Employers may maintain records in any 
format, including electronic, when adhering to the recordkeeping 
requirements covered by this information collection. The preservation 
of records in such forms as microfilm or automated word or data 
processing memory is acceptable, provided the employer maintains the 
information and provides adequate facilities to the Department for 
inspection, copying, and transcription of such records. Photocopies of 
records are also acceptable under the regulations. Id.
    Aside from the general requirement that third-party notifications 
be in writing, with a possible exception for the employee's FMLA 
request that depends on the employer's leave policies, there are no 
restrictions on the method of transmission. Respondents may meet many 
of their notification obligations by using Department-prepared 
publications available on the WHD Web site, www.dol.gov/whd. These 
forms are in PDF, fillable format for downloading and printing.
    Duplication: The FMLA information collections do not duplicate 
other existing information collections. In order to provide all 
relevant FMLA information in one set of requirements, the recordkeeping 
requirements restate a portion of the records employers must maintain 
under the Fair Labor Standards Act (FLSA). Employers do not need to 
duplicate the records when basic records maintained to meet FLSA 
requirements also document FMLA compliance. With the exception of 
records specifically tracking FMLA leave, the additional records 
required by the FMLA regulations are records that employers ordinarily 
maintain in the usual and ordinary course of business. The regulations 
do impose, however, a three-year minimum time limit that employers must 
maintain such records. The Department minimizes the FMLA information 
collection burden by accepting records maintained by employers as a 
matter of usual or customary business practices to the extent those 
records meet the FMLA requirements. The Department also accepts records 
kept due to other governmental requirements (e.g., records maintained 
for tax and payroll purposes). The Department has reviewed the needs of 
both employers and employees to determine the frequency of the third-
party notifications covered by this collection to establish frequencies 
that provide timely information with the least burden. The Department 
has further minimized the burden by developing prototype notices for 
many of the third-party disclosures covered by this information 
collection.
    Minimizing Small Entity Burden: The Department minimizes the FMLA 
information collection burden by accepting records maintained by 
employers as a matter of usual or customary business practices. The 
Department also accepts records kept due to requirements of other 
governmental requirements (e.g., records maintained for tax and payroll 
purposes). The Department has reviewed the needs of both employers and 
employees to determine the frequency of the third-party notifications 
covered by this collection to establish frequencies that provide timely 
information with the least burden. The Department has further minimized 
burden by developing prototype notices for many of the third-party 
disclosures covered by this information collection and giving the text 
employers must use, in accordance with FMLA section 109 (29 U.S.C. 
2619), in providing a general notice to employees of their FMLA rights 
and responsibilities, in addition to the prototype optional-use forms.
    Agency Need: The Department is assigned a statutory responsibility 
to ensure employer compliance with the FMLA. The Department uses 
records covered by this information collection to determine compliance, 
as required of the agency by FMLA section 107(b)(1). 29 U.S.C. 
2617(b)(1). Without the third-party notifications, the Department would 
have difficulty determining the extent to which employers and employees 
had met their FMLA obligations.
    Special Circumstances: Because of the unforeseeable and often 
urgent nature of the need for FMLA leave, notice and response times 
must be of short duration to ensure that employers and employees are 
sufficiently informed and can exercise their FMLA rights and satisfy 
their FMLA obligations.
    Privacy: Employers must maintain employee medical information they 
obtain for FMLA purposes as confidential medical records separately 
from other personnel files. Employers must also maintain such records 
in conformance with any applicable Americans with Disabilities Act and 
Genetic Information Nondiscrimination Act confidentiality requirements, 
except that: Supervisors and managers may be informed regarding 
necessary restrictions on the work or duties of an employee and 
necessary accommodations; first aid and safety personnel may be 
informed (when

[[Page 9997]]

appropriate) if the employee's physical or medical condition might 
require emergency treatment; and government officials investigating 
compliance with FMLA (or other pertinent law) shall be provided 
relevant information upon request.
    Agency: Wage and Hour Division.
    Title of Collection: The Family and Medical Leave Act, as Amended.
    OMB Control Number: 1235-0003.
    Affected Public: Individuals or Households; Private Sector--
Businesses or other for profits and not for profit institutions, farms, 
state, local, and tribal governments.
    Total estimated number of respondents: 7,182,916 (no change).
    Total estimated number of responses: 82,371,724 (38,106 responses 
added by this Final Rule).
    Total estimated annual burden hours: 9,313,503 (4,918 hours added 
by this Final Rule).
    Burden Cost: $236,283,571 ($124,770 from this final rule).
    Other Respondent Cost Burden (capital/start-up): 0.$
    Other Respondent Cost Burden (operations/maintenance): $184,932,912 
($108,326 (rounded) from this final rule).
    The PRA requires agencies to consider public comments on 
information collections and to explain in final rules how public 
engagement resulted in changes from proposed rules. The Department 
discussed public comments regarding comments on documentation 
requirements related to establishing a family relationship earlier in 
this rulemaking.

VII. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Although this rule is not economically significant within 
the meaning of Executive Order 12866, it has been reviewed by OMB.
    The Department revised the regulatory definition of ``spouse'' for 
the purpose of the FMLA to allow all legally married employees to take 
leave to care for their spouse regardless of whether their state of 
residence recognizes their marriage. As a result of this Final Rule, 
covered and eligible employees will be entitled to take FMLA leave 
regardless of their state of residence to care for their same-sex 
spouse with a serious health condition; to care for a stepchild with a 
serious health condition to whom the employee does not stand in loco 
parentis; to care for their parent's same-sex spouse with a serious 
health condition who did not stand in loco parentis to the employee 
when the employee was a child; for qualifying exigency reasons related 
to the covered active duty of their same-sex spouse; and to care for 
their same-sex spouse who is a covered servicemember with a serious 
injury or illness. This Final Rule will not expand coverage under the 
FMLA; that is, the coverage and eligibility provisions of the FMLA are 
unchanged by this rule and employees who were not previously eligible 
and employed by a covered establishment will not become eligible as a 
result of this Final Rule.
    Estimates of the number of individuals in same-sex marriages vary 
widely due to issues with state level data tracking, reliance on self-
reporting, and changes in survey formatting. The Department bases its 
estimate of same-sex marriages on the 2013 American Community Survey 
(ACS), conducted by the U.S. Census Bureau. The 2013 ACS showed 251,695 
self-reported same-sex marriages, which represents 503,390 individuals. 
The Department estimates, based on the 2013 ACS, that in 45.2 percent 
of same-sex marriages both partners are employed and, for the purposes 
of this analysis, the Department assumes that one spouse is employed in 
the remaining 54.8 percent of same-sex marriages.\5\
---------------------------------------------------------------------------

    \5\ U.S. Census Bureau, 2013. American Community Survey 1-year 
data file. Table 1: Household Characteristics of Opposite-Sex and 
Same-Sex Couple Households; and, Table 2: Household Characteristics 
of Same-Sex Couple Households by Assignment Status. Available at: 
http://www.census.gov/hhes/samesex/.
---------------------------------------------------------------------------

    The Department recently surveyed employers and employees nationwide 
on FMLA leave taking, Family and Medical Leave in 2012.\6\ Based on 
these survey findings, 59.2 percent of employees meet the eligibility 
requirements for FMLA leave and are employed by covered 
establishments.\7\ Of those employees, 16.8 percent were married and 
took FMLA leave \8\ and of those who took leave, 17.6 percent took 
leave to care for a parent, spouse, or child, and 1.4 percent took 
leave to address issues related to a military family member's covered 
active duty.\9\ Applying these findings to the number of individuals in 
same-sex marriages based on the 2013 ACS results in an estimated 8,202 
new instances of FMLA leave annually as a result of the proposed change 
to the regulatory definition of spouse.10 11 This likely

[[Page 9998]]

overestimates the number of instances of new leave that would be taken, 
as covered and eligible employees in same-sex marriages were already 
entitled in most instances to take FMLA leave to care for a parent or 
child with a serious health condition.
---------------------------------------------------------------------------

    \6\ See Wage and Hour Division FMLA Surveys Web page at: http://www.dol.gov/whd/fmla/survey/ survey/.
    \7\ Family and Medical Leave in 2012: Technical Report, exhibit 
2.2.1, page 20, available at: http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
    \8\ Family and Medical Leave in 2012: Technical Report, exhibit 
4.1.5, page 64.
    \9\ Family and Medical Leave in 2012: Technical Report, exhibits 
4.4.2, page 70, and 4.4.7, page 74.
    \10\ (251,695 marriages x 45.2 percent x 2) + (251,695 x 54.8 
percent) = 227,532 + 137,929 = 365,461 employed same-sex spouses.
    365,461 employees x 59.2 percent = 216,353 covered, eligible 
employees.
    216,353 x 16.8 percent = 36,347 covered, eligible employees 
taking leave.
    In past rulemakings the Department has estimated that covered, 
eligible employees taking leave take 1.5 instances of leave per year 
for traditional FMLA purposes, 13 instances of leave per year for 
qualifying exigency purposes, 44 instances of leave per year for 
military caregiver leave to care for an active-duty servicemember, 
and 51 instances of leave per year for military caregiver leave to 
care for a covered veteran. The Department uses those same estimates 
for this analysis. The Department estimates a weighted average for 
an employee who takes military caregiver leave at 45.4 instances of 
leave per year ((29,100 respondents x 44 responses) + (6,966 
respondents x 51 responses) [rarr] 1,280,400 + 355,266 = 1,635,666 
[rarr] 1,635,666/(29,100 + 6,966) = 45.4).
    To determine total new instances of leave, the Department first 
totaled the number of respondents per type of leave, then determined 
the percentage that respondents for each type of leave represent of 
all total respondents, and lastly, applied these percentages and the 
averages of instances of leave per type of leave to the Department's 
estimate of 36,347 same-sex, married employees who are FMLA-covered, 
FMLA-eligible and actually take FMLA leave per year. These 
calculations are as follows:
    Traditional FMLA leave respondents: 7,000,000 + 5,950 = 
7,005,950
    Qualifying Exigency leave respondents: 110,000 + 30,900 = 
140,900
    Military Caregiver (all) leave respondents: 29,100 + 6,966 = 
36,066
    Total respondents: 7,182,916.
    Percentage that each type of leave represents of all total 
respondents:
    Traditional FMLA leave respondents: 7,005,950/7,182,916 = 0.9754 
or 97.54 percent.
    Qualifying Exigency leave respondents: 140,900/7,182,916 = 
0.0196 or 1.96 percent.
    Military Caregiver (all) leave respondents: 36,066/7,182, 916 = 
0.0050 or 0.50 percent.
    36,347 employees x 0.9754 x 1.5 = 53,180 instances of 
traditional leave
    36,347 employees x 0.0196 x 13 = 9,256 instances of qualifying 
exigency leave
    36,347 employees x 0.0050 x 45.4 = 8,263 instances of military 
caregiver leave
    Total instances of leave or responses taken by individuals in 
same-sex marriages: 70,699.
    70,699 x 17.6 percent = 12,443 instances of leave to care for a 
parent, spouse, or child.
    70,699 x 1.4 percent = 990 instances of leave for qualifying 
exigency reasons.
    70,699 x 1.4 percent = 990 instances of leave for military 
caregiver reasons.
    The Department assumes that half (6,222) of the 12,443 instances 
of leave for the employee's parent, child, or spouse would be taken 
for the employee's same-sex spouse, stepchild, or stepparent, in 
recognition of the fact that an employee with a same-sex partner is 
already able to take leave to care for the employee's parent or 
child.
    6,222 + 990 + 990 = 8,202 new instances of FMLA leave.
    \11\ PRA analysis estimates burdens imposed by the ``paperwork'' 
requirements, while E.O. 12866 analysis estimates the effect the 
proposed regulations will have on the economy. Because E.O. 12866 
and the PRA impose differing requirements, and because the 
corresponding analyses are intended to meet different needs, the 
estimated number of instances of leave in the PRA analysis differs 
from the estimated number in the E.O. 12866 analysis.
---------------------------------------------------------------------------

    Because FMLA leave is unpaid leave, the costs to employers 
resulting from this Final Rule are: regulatory familiarization, 
maintenance of preexisting employee health benefits during FMLA leave, 
and administrative costs associated with providing required notices to 
employees, requesting certifications, reviewing employee requests and 
medical certifications, and making necessary changes to employer 
policies. The costs related to requesting and reviewing employee 
requests for leave and certifications and of providing required notices 
to employees are discussed in the Paperwork Reduction Act section of 
this Final Rule. The Department expects the remaining costs to be 
minimal to employers. The Department has determined that this rule will 
not result in an annual effect on the economy of $100 million or more. 
No comments were received on the Department's regulatory impact 
analysis.

VIII. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA) as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 
hereafter jointly referred to as the RFA, requires agencies to evaluate 
the potential effects of their proposed and final rules on small 
businesses, small organizations and small governmental jurisdictions. 
See 5 U.S.C. 603-604. If the rule is not expected to have a significant 
economic impact on a substantial number of small entities, the RFA 
allows an agency to certify such, in lieu of preparing an analysis. See 
5 U.S.C. 605.
    The Department certifies that this Final Rule does not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the RFA. Therefore, a final regulatory 
flexibility analysis is not required. The factual basis for this 
certification is set forth below.
    This Final Rule amending the FMLA regulations' definition of spouse 
will not substantively alter current FMLA regulatory requirements, but 
instead will allow more employees to take leave based on a same-sex 
marital relationship. The Department estimates that this definitional 
revision will result in 6,222 new instances of FMLA leave taken to care 
for an employee's same-sex spouse, stepchild, or stepparent; 990 new 
instances for qualifying exigency purposes; and 990 new instances for 
military caregiver purposes. These numbers reflect the Department's 
estimate that a total of 8,202 new instances of FMLA leave might be 
taken as a result of this Final Rule, as detailed in the Executive 
Orders 12866 and 13563 section of this Final Rule preamble. This likely 
overestimates the number of new instances of leave-taking as covered 
and eligible employees in same-sex marriages are already entitled in 
most cases to take FMLA leave to care for a parent or child with a 
serious health condition.
    Because the FMLA does not require the provision of paid leave, the 
costs of this rule are limited to the cost of hiring replacement 
workers, maintenance of employer-provided health insurance to the 
employee while on FMLA leave, compliance with the FMLA's notice 
requirements, and regulatory familiarization.
    The need to hire replacement workers represents a possible cost to 
employers. In some businesses employers are able to redistribute work 
among other employees while an employee is absent on FMLA leave, but in 
other cases the employer may need to hire temporary replacement 
workers. This process involves costs resulting from recruitment of 
temporary workers with needed skills, training the temporary workers, 
and lost or reduced productivity of these workers. The cost to 
compensate the temporary workers is in most cases offset by the amount 
of wages not paid to the employee absent on FMLA leave, when the 
employee's FMLA leave is unpaid (i.e., the employee is not using 
accrued sick or vacation leave).
    In the first FMLA rulemaking, the Department drew upon available 
research to suggest that the cost per employer to adjust for workers 
who are on FMLA leave is fairly small. 58 FR 31810. Subsequent 
rulemakings have not produced evidence to the contrary; therefore, for 
the purpose of this discussion, the Department will continue to assume 
that these costs are fairly small. Furthermore, most employers subject 
to this Final Rule have been subject to the FMLA for some time and have 
already developed internal systems for work redistribution and 
recruitment of temporary workers.
    Additionally, one cost to employers consists of the health 
insurance benefits maintained by employers during employees' FMLA 
leave. Based on the Department's recent survey on FMLA leave, Family 
and Medical Leave in 2012, the average length of leave taken in one 
year by a covered, eligible employee is 27.5 days.\12\ Assuming that 
most employees worked an eight-hour day, the average length of FMLA 
leave for an employee totals 220 hours in a given year.
---------------------------------------------------------------------------

    \12\ 2012 FMLA survey data showed that employees' average length 
of leave in past twelve months was 27.5 days. Family and Medical 
Leave in 2012: Technical Report, page 68, available at: http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
---------------------------------------------------------------------------

    Further, based on methodology used in the 2008 Final Rule, which 
first implemented the FMLA's military leave provisions, the Department 
estimates that a covered, eligible employee will take 200 hours of FMLA 
leave for qualifying exigency leave under Sec.  825.126 in a given 
year. Additionally, using the same methodology, the Department 
estimates that a covered, eligible employee will take 640 hours of FMLA 
leave for military caregiver leave in a given year under Sec.  825.127. 
73 FR 68051.
    To calculate the costs of providing health insurance, the 
Department utilizes data from the BLS Employer Costs for Employee 
Compensation survey. According to BLS' March, 2014 report, employers 
spend an average of $2.45 per hour on insurance.\13\ Cost estimates are 
derived by multiplying the average leave duration with both the number 
of new instances of FMLA leave taken in each category and the $2.45 
hourly cost to employers for health insurance, as follows:
---------------------------------------------------------------------------

    \13\ http://bls.gov/ro7/ro7ecec.htm.
---------------------------------------------------------------------------

    [ssquf] Estimated annual employer benefits cost for FMLA leave 
taken for employee's same-sex spouse, stepchild, or stepparent: 
$3,353,658 (6,222 new instances x 220 hours \14\ x $2.45)
---------------------------------------------------------------------------

    \14\ Note that 220 hours (27.5 days) is likely an overestimate, 
since some of these hours would be for FMLA leave that the employee 
was already eligible to take (e.g., leave for employee's parent, 
spouse, or child).
---------------------------------------------------------------------------

    [ssquf] Estimated annual employer benefit cost for FMLA leave taken 
for qualifying

[[Page 9999]]

exigency leave: $485,100 (990 new instances x 200 hours x $2.45)
    [ssquf] Estimated annual employer benefit cost for FMLA leave taken 
for military caregiver leave: $1,552,320 (990 new instances x 640 hours 
x $2.45).
    Assuming that all covered, eligible employees taking FMLA leave 
receive employer-provided health insurance benefits, the estimated 
total cost to employers for providing benefits is $5,391,078 
($3,353,658 + $485,100 + $1,552,320).
    Further, employers will incur costs related to the increase in the 
number of required notices and responses to certain information 
collections due to this Final Rule. As explained in the Paperwork 
Reduction Act section of this Final Rule preamble, the Department has 
estimated the paperwork burden cost associated with this regulatory 
change to be $233,096 per year.
    Lastly, in response to this Final Rule, each employer will need to 
review the definitional change, determine what revisions are necessary 
to their policies, and update their handbooks or other leave-related 
materials to incorporate any needed changes. This is a one-time cost to 
each employer, calculated as 30 minutes at the hourly wage of a Human 
Resources Specialist. The median hourly wage of a Human Resources 
Specialist is $27.23 plus 40 percent in fringe benefits, which results 
in a total hourly rate of $38.12 (($27.23 x 0.40) + $27.23). See BLS 
Occupational Employment Statistics, Occupational Employment and Wages, 
May 2013 (http://www.bls.gov/oes/current/oes131071.htm). The Department 
estimates total annual respondent costs for the value of their time 
dedicated to regulatory familiarization costs to be $7,261,860 ($38.12 
x 0.5 hour x 381,000 covered firms and government agencies with 1.2 
million establishments subject to the FMLA).
    Therefore, the Department estimates the total cost of this Final 
Rule to be $12,886,034 ($5,391,078 in employer provided health benefits 
+ $233,096 in paperwork burden cost + $7,261,860 in regulatory 
familiarization costs).
    The Department believes this to be an overestimate. The FMLA 
applies to public agencies and to private sector employers that employ 
50 or more employees for each working day during 20 or more calendar 
weeks in the current or preceding calendar year. 29 U.S.C. 2611(4). In 
addition, the FMLA excludes employees from eligibility for FMLA leave 
if the total number of employees employed by that employer within 75 
miles of that employee's worksite is less than 50. 29 U.S.C. 
2611(2)(B)(ii). Therefore, changes to the FMLA regulations by 
definition will not impact small businesses with fewer than 50 
employees. The Department acknowledges that some small employers that 
are within the SBA definition of small business (50-500 employees) will 
still have to comply with the regulation and incur costs.
    In its 2012 proposed rule, the Department estimated there were 
381,000 covered firms and government agencies with 1.2 million 
establishments subject to the FMLA. 77 FR 8989. Applying the SBA size 
definitions for small entities, the Department estimated that 
approximately 83 percent, or 314,751 employers, are small entities 
subject to the FMLA. 77 FR 9004. Dividing the total cost of this Final 
Rule by the Department's estimate for the number of affected small 
entities results in an annual cost per small entity of $40.77 
($12,831,808/314,751 small entities). This is not deemed a significant 
cost. In addition, if the Department assumed that all covered employers 
were small entities, the annual cost per small entity would only be 
$33.82 ($12,886,034/381,000 small entities). This also is not deemed a 
significant cost.
    The Department received no comments on its determination that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities within the meaning of the RFA. The 
Department certifies to the Chief Counsel for Advocacy that this Final 
Rule will not have a significant economic impact on a substantial 
number of small entities.

IX. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments as well as on the private sector. Under section 202(a) of 
UMRA, the Department must generally prepare a written statement, 
including a cost-benefit analysis, for proposed and final regulations 
that ``includes any Federal mandate that may result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector'' in excess of $100 million in any one year ($141 
million in 2012 dollars, using the Gross Domestic Product deflator).
    State, local, and tribal government entities are within the scope 
of the regulated community for this regulation. The Department has 
determined that this Final Rule contains a federal mandate that is 
unlikely to result in expenditures of $141 million or more for state, 
local, and tribal governments, in the aggregate, or the private sector 
in any one year.

X. Executive Order 13132, Federalism

    This Final Rule does not have federalism implications as outlined 
in E.O. 13132 regarding federalism. Although States are covered 
employers under the FMLA, this Final Rule does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

XI. Executive Order 13175, Indian Tribal Governments

    This Final Rule was reviewed under the terms of E.O. 13175 and 
determined not to have ``tribal implications.'' This Final Rule also 
does not have ``substantial direct effects on one or more Indian 
tribes, on the relationship between the federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the federal government and Indian tribes.'' As a result, no tribal 
summary impact statement has been prepared.

XII. Effects on Families

    The undersigned hereby certifies that this Final Rule will not 
adversely affect the well-being of families, as discussed under section 
654 of the Treasury and General Government Appropriations Act, 1999.

XIII. Executive Order 13045, Protection of Children

    E.O. 13045 applies to any rule that (1) is determined to be 
``economically significant'' as defined in E.O. 12866, and (2) concerns 
an environmental health or safety risk that the promulgating agency has 
reason to believe may have a disproportionate effect on children. This 
Final Rule is not subject to E.O. 13045 because it is not economically 
significant as defined in Executive Order 12866 and, although the rule 
addresses family and medical leave provisions of the FMLA, it does not 
concern environmental health or safety risks that may 
disproportionately affect children.

XIV. Environmental Impact Assessment

    A review of this Final Rule in accordance with the requirements of 
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11, 
indicates that this Final Rule will not have a

[[Page 10000]]

significant impact on the quality of the human environment. Thus, no 
corresponding environmental assessment or environmental impact 
statement have been prepared.

XV. Executive Order 13211, Energy Supply

    This Final Rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

XVI. Executive Order 12630, Constitutionally Protected Property Rights

    This Final Rule is not subject to E.O. 12630, because it does not 
involve implementation of a policy ``that has takings implications'' or 
that could impose limitations on private property use.

XVII. Executive Order 12988, Civil Justice Reform Analysis

    This rule was drafted and reviewed in accordance with E.O. 12988 
and will not unduly burden the federal court system. This Final Rule 
was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) 
written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 825

    Employee benefit plans, Health, Health insurance, Labor management 
relations, Maternal and child health, Teachers.

    Signed at Washington, DC, this 18th day of February, 2015.
David Weil,
Administrator, Wage and Hour Division.

    For the reasons set forth in the preamble, the Department amends 
Title 29, Part 825 of the Code of Federal Regulations as follows:

PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993

0
1. The authority citation for part 825 continues to read as follows:

    Authority:  29 U.S.C. 2654.


0
2. In Sec.  825.102 revise the definition of ``spouse'' to read as 
follows:


Sec.  825.102  Definitions.

* * * * *
    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.
* * * * *

0
3. Amend Sec.  825.120 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the first and fifth sentences of paragraph (a)(2);
0
c. Revising the first, second, fifth, and last sentences of paragraph 
(a)(3);
0
d. Revising the first and fourth sentences of paragraph (a)(4);
0
e. Revising the first sentence of paragraph (a)(5);
0
f. Revising paragraph (a)(6); and
0
g. Revising the sixth sentence of paragraph (b).
    The revisions to read as follows:


Sec.  825.120  Leave for pregnancy or birth.

    (a) * * *
    (1) Both parents are entitled to FMLA leave for the birth of their 
child.
    (2) Both parents are entitled to FMLA leave to be with the healthy 
newborn child (i.e., bonding time) during the 12-month period beginning 
on the date of birth. * * * Under this section, both parents are 
entitled to FMLA leave even if the newborn does not have a serious 
health condition.
    (3) Spouses who are eligible for FMLA leave and are employed by the 
same covered employer may be limited to a combined total of 12 weeks of 
leave during any 12-month period if the leave is taken for birth of the 
employee's son or daughter or to care for the child after birth, for 
placement of a son or daughter with the employee for adoption or foster 
care or to care for the child after placement, or to care for the 
employee's parent with a serious health condition. This limitation on 
the total weeks of leave applies to leave taken for the reasons 
specified as long as the spouses are employed by the same employer. * * 
* Where spouses both use a portion of the total 12-week FMLA leave 
entitlement for either the birth of a child, for placement for adoption 
or foster care, or to care for a parent, the spouses would each be 
entitled to the difference between the amount he or she has taken 
individually and 12 weeks for FMLA leave for other purposes. * * * 
Note, too, that many state pregnancy disability laws specify a period 
of disability either before or after the birth of a child; such periods 
would also be considered FMLA leave for a serious health condition of 
the birth mother, and would not be subject to the combined limit.
    (4) The expectant mother is entitled to FMLA leave for incapacity 
due to pregnancy, for prenatal care, or for her own serious health 
condition following the birth of the child. * * * The expectant mother 
is entitled to leave for incapacity due to pregnancy even though she 
does not receive treatment from a health care provider during the 
absence, and even if the absence does not last for more than three 
consecutive calendar days. * * *
    (5) A spouse is entitled to FMLA leave if needed to care for a 
pregnant spouse who is incapacitated or if needed to care for her 
during her prenatal care, or if needed to care for her following the 
birth of a child if she has a serious health condition. * * *
    (6) Both parents are entitled to FMLA leave if needed to care for a 
child with a serious health condition if the requirements of Sec. Sec.  
825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each 
take 12 weeks of FMLA leave if needed to care for their newborn child 
with a serious health condition, even if both are employed by the same 
employer, provided they have not exhausted their entitlements during 
the applicable 12-month FMLA leave period.
    (b) * * * The employer's agreement is not required for intermittent 
leave required by the serious health condition of the expectant mother 
or newborn child. * * *

0
4. Amend Sec.  825.121 by:
0
a. Revising the first, second, and fifth sentences of paragraph (a)(3); 
and
0
b. Revising the second sentence of paragraph (a)(4).
    The revisions to read as follows:


Sec.  825.121  Leave for adoption or foster care.

    (a) * * *
    (3) Spouses who are eligible for FMLA leave and are employed by the 
same covered employer may be limited to a combined total of 12 weeks of 
leave during any 12-month period if the leave is taken for the 
placement of the employee's son or daughter or to care for the child 
after placement, for the birth of the employee's son or daughter or to 
care for the child after birth, or to care for the employee's parent 
with a serious health condition. This limitation on the total weeks of 
leave applies to leave taken for the reasons specified as long as the 
spouses are employed by the same employer. * * * Where spouses

[[Page 10001]]

both use a portion of the total 12-week FMLA leave entitlement for 
either the birth of a child, for placement for adoption or foster care, 
or to care for a parent, the spouses would each be entitled to the 
difference between the amount he or she has taken individually and 12 
weeks for FMLA leave for other purposes. * * *
    (4) * * * Thus, spouses may each take 12 weeks of FMLA leave if 
needed to care for an adopted or foster child with a serious health 
condition, even if both are employed by the same employer, provided 
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
* * * * *

0
5. Revise Sec.  825.122(b) to read as follows:


Sec.  825.122  Definitions of covered servicemember, spouse, parent, 
son or daughter, next of kin of a covered servicemember, adoption, 
foster care, son or daughter on covered active duty or call to covered 
active duty status, son or daughter of a covered servicemember, and 
parent of a covered servicemember.

* * * * *
    (b) 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.
* * * * *

0
6. Amend Sec.  825.127 by revising the first and second sentences of 
paragraph (f) to read as follows:


Sec.  825.127  Leave to care for a covered servicemember with a serious 
injury or illness (military caregiver leave).

* * * * *
    (f) Spouses who are eligible for FMLA leave and are employed by the 
same covered employer may be limited to a combined total of 26 
workweeks of leave during the single 12-month period described in 
paragraph (e) of this section if the leave is taken for birth of the 
employee's son or daughter or to care for the child after birth, for 
placement of a son or daughter with the employee for adoption or foster 
care, or to care for the child after placement, to care for the 
employee's parent with a serious health condition, or to care for a 
covered servicemember with a serious injury or illness. This limitation 
on the total weeks of leave applies to leave taken for the reasons 
specified as long as the spouses are employed by the same employer. * * 
*

0
7. Amend Sec.  825.201 by revising the first, second, and fifth 
sentences of paragraph (b) to read as follows:


Sec.  825.201  Leave to care for a parent.

* * * * *
    (b) Same employer limitation. Spouses who are eligible for FMLA 
leave and are employed by the same covered employer may be limited to a 
combined total of 12 weeks of leave during any 12-month period if the 
leave is taken to care for the employee's parent with a serious health 
condition, for the birth of the employee's son or daughter or to care 
for the child after the birth, or for placement of a son or daughter 
with the employee for adoption or foster care or to care for the child 
after placement. This limitation on the total weeks of leave applies to 
leave taken for the reasons specified as long as the spouses are 
employed by the same employer. * * * Where the spouses both use a 
portion of the total 12-week FMLA leave entitlement for either the 
birth of a child, for placement for adoption or foster care, or to care 
for a parent, the spouses would each be entitled to the difference 
between the amount he or she has taken individually and 12 weeks for 
FMLA leave for other purposes. * * *
0
8. Amend Sec.  825.202 by revising the third sentence of paragraph (c) 
to read as follows:


Sec.  825.202  Intermittent leave or reduced leave schedule.

* * * * *
    (c) * * * The employer's agreement is not required, however, for 
leave during which the expectant mother has a serious health condition 
in connection with the birth of her child or if the newborn child has a 
serious health condition. * * *
* * * * *
[FR Doc. 2015-03569 Filed 2-23-15; 11:15 am]
BILLING CODE 4510-27-P