Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 9989 

jobs, the environment, public health or 

safety, or State, local, or tribal 

government or communities. 

Accordingly, this rule is not a 

‘‘significant regulatory action’’ as 

defined in Executive Order 12866. 

Executive Order 12988 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, ‘‘Civil 

Justice Reform.’’ 

Executive Order 13132 

This rule will 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. Therefore, in 

accordance with Executive Order 13132, 

‘‘Federalism,’’ the Department has 

determined that this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501 et seq. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 5 U.S.C. 

804. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

Congressional Review Act 

This action pertains to agency 

management, personnel, and 

organization and does not substantially 

affect the rights or obligations of nonagency parties. Accordingly, it is not a 

rule for purposes of the reporting 

requirement of 5 U.S.C. 801. 

List of Subjects in 28 CFR Part 0 

Authority delegations (Government 

agencies), Government employees, 

Organization and functions 

(Government agencies), Privacy, 

Reporting and recordkeeping 

requirements, Whistleblowing. 

Authority and Issuance 

Accordingly, by virtue of the 

authority vested in me as Attorney 

General, including 5 U.S.C. 301 and 28 

U.S.C. 509, 510, and for the reasons set 

forth in the preamble, part 0 of title 28 

of the Code of Federal Regulations is 

amended as follows: 

PART 0—ORGANIZATION OF THE 

DEPARTMENT OF JUSTICE 

■ 1. The authority citation for 28 CFR 

part 0 continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510, 515–519. 

§ 0.130 [Amended] 

■ 2. In § 0.130, amend paragraph (b)(2) 

by removing the second sentence. 

Dated: February 20, 2015. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2015–03839 Filed 2–24–15; 8:45 am] 

BILLING CODE 4410–19–P 

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. 

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 


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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. 

§§ 825.102, 825.122(a) (prior to the 2013 

Final Rule the same definition appeared 

at §§ 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 


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1As 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. 

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 statesanctioned 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-inlaw). 

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 §§ 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 


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2On 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. 

extend the right to marry to both samesex 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 samesex 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 samesex 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. 

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 samesex 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. 


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3This definition was not changed in the 2008 and 

2013 rulemakings. See 73 FR 67934; 78 FR 8834. 

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 upto-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. 

§ 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 FMLAeligible 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. 

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 

§ 825.122(k) to require that employers 

request documentation of a family 

relationship in a consistent and nondiscriminatory 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 § 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 governmentissued documentation to confirm 

common law marriages when an 

employee can document all other 


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4While the commenters cited only to 

§ 825.122(c), this same definition of parent is 

contained in § 825.102. 

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 samesex 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 dayto-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 § 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 


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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. 

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 § 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. §§ 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 

§ 825.700(a). FMLA regulations state: 

‘‘[N]othing in the Act is intended to 

discourage employers from adopting or 

retaining more generous leave policies.’’ 

§ 825.700(b). 

V. Conforming Changes 

Minor editorial changes were 

proposed to §§ 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 samesex 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 samesex 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 


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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 samesex 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 § 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 Departmentprepared 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 thirdparty 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 thirdparty 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 thirdparty 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 


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5U.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/. 

6See Wage and Hour Division FMLA Surveys 

Web page at: http://www.dol.gov/whd/fmla/ 

survey/. 

7Family 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. 

8Family and Medical Leave in 2012: Technical 

Report, exhibit 4.1.5, page 64. 

9Family and Medical Leave in 2012: Technical 

Report, exhibits 4.4.2, page 70, and 4.4.7, page 74. 

10 (251,695 marriages × 45.2 percent × 2) + 

(251,695 × 54.8 percent) = 227,532 + 137,929 = 

365,461 employed same-sex spouses. 

365,461 employees × 59.2 percent = 216,353 

covered, eligible employees. 

216,353 × 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 × 44 responses) 

+ (6,966 respondents × 51 responses) → 1,280,400 

+ 355,266 = 1,635,666 → 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 × 0.9754 × 1.5 = 53,180 

instances of traditional leave 

36,347 employees × 0.0196 × 13 = 9,256 instances 

of qualifying exigency leave 

36,347 employees × 0.0050 × 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 × 17.6 percent = 12,443 instances of leave 

to care for a parent, spouse, or child. 

70,699 × 1.4 percent = 990 instances of leave for 

qualifying exigency reasons. 

Continued 

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 samesex 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 samesex 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

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 


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70,699 × 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. 

11PRA 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. 

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/FMLA2012-Technical-Report.pdf. 

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

14Note 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). 

overestimates the number of instances 

of new leave that would be taken, as 

covered and eligible employees in samesex marriages were already entitled in 

most instances to take FMLA leave to 

care for a parent or child with a serious 

health condition. 

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. 

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 

§ 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 § 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: 

D 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 × 220 hours 14 × $2.45) 

D Estimated annual employer benefit 

cost for FMLA leave taken for qualifying 


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exigency leave: $485,100 (990 new 

instances × 200 hours × $2.45) 

D Estimated annual employer benefit 

cost for FMLA leave taken for military 

caregiver leave: $1,552,320 (990 new 

instances × 640 hours × $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 × 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 × 0.5 hour × 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 


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10000 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 

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 

■ 1. The authority citation for part 825 

continues to read as follows: 

Authority: 29 U.S.C. 2654. 

■ 2. In § 825.102 revise the definition of 

‘‘spouse’’ to read as follows: 

§ 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. 

* * * * * 

■ 3. Amend § 825.120 by: 

■ a. Revising paragraph (a)(1); 

■ b. Revising the first and fifth 

sentences of paragraph (a)(2); 

■ c. Revising the first, second, fifth, and 

last sentences of paragraph (a)(3); 

■ d. Revising the first and fourth 

sentences of paragraph (a)(4); 

■ e. Revising the first sentence of 

paragraph (a)(5); 

■ f. Revising paragraph (a)(6); and 

■ g. Revising the sixth sentence of 

paragraph (b). 

The revisions to read as follows: 

§ 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 §§ 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. * * * 

■ 4. Amend § 825.121 by: 

■ a. Revising the first, second, and fifth 

sentences of paragraph (a)(3); and 

■ b. Revising the second sentence of 

paragraph (a)(4). 

The revisions to read as follows: 

§ 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 


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Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 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. 

* * * * * 

■ 5. Revise § 825.122(b) to read as 

follows: 

§ 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. 

* * * * * 

■ 6. Amend § 825.127 by revising the 

first and second sentences of paragraph 

(f) to read as follows: 

§ 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. * * * 

■ 7. Amend § 825.201 by revising the 

first, second, and fifth sentences of 

paragraph (b) to read as follows: 

§ 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. * * * 

■ 8. Amend § 825.202 by revising the 

third sentence of paragraph (c) to read 

as follows: 

§ 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 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AP26 

Automobile or Other Conveyance and 

Adaptive Equipment Certificate of 

Eligibility for Veterans or Members of 

the Armed Forces With Amyotrophic 

Lateral Sclerosis 

AGENCY: Department of Veterans Affairs. 

ACTION: Interim final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending its 

adjudication regulation regarding 

certificates of eligibility for financial 

assistance in the purchase of an 

automobile or other conveyance and 

adaptive equipment. The amendment 

authorizes automatic issuance of a 

certificate of eligibility for financial 

assistance in the purchase of an 

automobile or other conveyance and 

adaptive equipment to all veterans with 

service-connected amyotrophic lateral 

sclerosis (ALS) and members of the 

Armed Forces serving on active duty 

with ALS. 

DATES: Effective Date: This interim final 

rule is effective February 25, 2015. 

Comment Date: Comments must be 

received by VA on or before April 27, 

2015. 

Applicability Date: The provisions of 

this regulatory amendment apply to all 

applications for a certificate of 

eligibility for an automobile or other 

conveyance and adaptive equipment 

allowance pending before VA on or 

received after February 25, 2015. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy 

and Management (02REG), Department 

of Veterans Affairs, 810 Vermont Ave. 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AP26—Automobile or Other 

Conveyance and Adaptive Equipment 

Certificate of Eligibility for Veterans or 

Members of the Armed Forces With 

Amyotrophic Lateral Sclerosis 

Connected to Military Service.’’ Copies 

of comments received will be available 

for public inspection in the Office of 

Regulation Policy and Management, 

Room 1068, between the hours of 8:00 

a.m. and 4:30 p.m., Monday through 

Friday (except holidays). Please call 

(202) 461–4902 for an appointment. 

(This is not a toll free number.) In 

addition, during the comment period, 


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