Who is a legal spouse in the eyes of the federal government? For Federal employees, the definition of a legal marriage partner has been evolving and is now reflected in a final rule issued by the Office of Personnel Management (OPM).
OPM is changing how the term is defined in its regulations on the Family and Medical Leave Act (FMLA). The change is based on a decision by the Supreme Court. That decision (U.S. vs. Windsor) concluded that the interpretation of “marriage” and “spouse” to apply only to heterosexual marriages under the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment of the U.S. Constitution. The new rule is effective on May 9, 2016.
Published in the Federal Register, the new definition of a spouse no longer refers to ‘‘a legal union between one man and one woman.’’ The new definition permits Federal employees with same-sex spouses to use FMLA leave in the same manner as Federal employees with a spouse of the opposite sex.
The change is not unexpected or that new. OPM issued a memorandum on October 21, 2013 advising Federal agencies that the definition of spouse used in OPM’s FMLA regulations was no longer valid. That memo stated that, effective June 26, 2013, an employee in a legally recognized same-sex marriage, regardless of state of residence, could use FMLA leave entitlement in the same manner as an employee married to a person of the opposite sex.