The United States Department of Labor recently published a final rule that amends the definition of “spouse” under the Family and Medical Leave Act (FMLA) to specifically include spouses in same sex marriages. More significantly, however, the new rule provides that the legality of a marriage is to be determined by the law of the state in which the marriage was entered into (the place of celebration), not the state of residence. This definition change means that employers subject to the FMLA in the 16 states that currently do not recognize same sex marriages must nonetheless extend FMLA leave rights to eligible employees who request leave to care for same sex spouses, as long as the marriage was legal in the state where it was celebrated. This rule change takes effect on March 27, 2015.

Tennessee employers need to take note of this change, as Tennessee is one of the minority of states that do not currently recognize same sex marriages. As of March 27, 2015, Tennessee employers subject to the FMLA will be required to extend FMLA spousal leave benefits to employees in same sex marriages, even though same sex marriages are not recognized in the state where the employee resides and works.

This amendment has received surprisingly little publicity; yet it represents a substantial change in FMLA benefits for Tennessee employers and their employees. For that reason, employees in Tennessee who seek FMLA leave to care for a same sex spouse after March 27, 2015 may be denied that request by some employers due to a lack of knowledge of the change in the law. If that occurs, you should seek assistance of legal counsel who is knowledgeable of the FMLA and the remedies it provides to employees for violations.