What is a "Spouse" According to Nebraska?

Webster's Dictionary defines a "spouse" as someone who is married, a married person, or a husband or wife. Seems pretty simple, doesn't it? Well, in most cases, it is simple or at least, it should be. Enter the Law. Not only do laws get passed to govern people, which in itself is necessary, but now there is an interpretation to take into account. Something that is black and white, like the definition of "spouse", can now be interpreted to mean different things to different people. This should be the good part of our system, where policies and procedures are constantly edited or amended to grow with the change that happens. Sure, it can be a battle to keep up with those changes, but you take the good with the bad.

The definition of "spouse" is under a lot of scrutiny, thanks to changing definitions of marriage when it pertains to same-sex couples. As more and more states ratify same-sex couples as legal partnerships and allow them to marry, the consequences are far-reaching. The Federal Family and Medical Leave Act ("FMLA") is one area where this definition is used. Employers need to know what their state and local city's definition of "spouse" is before they disallow benefits based upon it where the FMLA is concerned.

For example, "the Department of Labor's revised definition of "spouse" under the FMLA was recently struck down in Texas. On March 26, 2015, in Texas v. United States, the United States District Court for the Northern District of Texas granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the Department of Labor's Final Rule that revised the regulatory definition of "spouse" to include same-sex partners under the Federal Family and Medical Leave Act ("FMLA").

After the Supreme Court struck down Section 3 of the Defense of Marriage Act ("DOMA") in United States v. Windsor, which defined spouse under federal law, as a person of the opposite sex, President Obama called for a review of all relevant federal statutes to implement the decision. Under the then-existing FMLA regulation defining spouse, eligible employees in same-sex marriages recognized in their "state of residence" could take FMLA leave to care for a same-sex spouse with a serious health condition. However, this definition did not allow an eligible employee to take FMLA leave on the basis of the employee's legal same-sex marriage if the employee lived in a state that did not recognize same-sex marriage.

On February 25, 2015, in order to provide FMLA rights to all legally married same-sex couples consistent with the Windsor decision, the Department of Labor issued a Final Rule revising the definition of spouse under the FMLA. Essentially, the Rule provided that any eligible employee who is in a legal same-sex marriage can take FMLA leave to care for his or her spouse, regardless of the state in which that employee resides. To determine who could be considered a spouse, the revised definition looks to the law in the "state of celebration," that is, the jurisdiction in which the marriage was entered into, instead of the law of the state in which the employee resides. The Rule was to be effective March 27, 2015."

This isn't sitting well with some states, arguing that the DOL is overstepping their authority by forcing a state to provide protection under FMLA using another state's definition of what a "spouse" is, even if it directly is against its own definition. The State of Texas is filing against the order by the DOL and named three other states, Arkansas, Louisiana and Nebraska in the complaint. These other states also have the same restriction on how a "spouse" is defined.

What does this mean for employers? You should know how your state defines "spouse" and make sure your employees that grant leave under the FMLA are trained and aware of the current and any new definitions that may change how it is administered. If you are in one of the four states mentioned in the claim, Texas, Arkansas, Louisiana and Nebraska, you should keep up on any changes or developments in the current claim against the DOL to make sure how FMLA will be implemented in that state or in your city of residence. For instance, the City of Omaha includes sexual orientation as a protected characteristic but the State of Nebraska does not. This difference may change how FMLA works in the local area.

Information from a Blog for Drinker Biddle & Reath LLP, "FMLA's new definition of "spouse" halted in four states"

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