[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Proposed Rules]
[Pages 35497-35498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14514]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 79, No. 120 / Monday, June 23, 2014 / 
Proposed Rules  

[[Page 35497]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AM90


Family and Medical Leave Act; Definition of Spouse

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
revise the definition of spouse in its regulations on the Family and 
Medical Leave Act (FMLA) as a result of the decision by the United 
States Supreme Court holding Section 3 of the Defense of Marriage Act 
(DOMA) unconstitutional. The new definition will replace the existing 
definition, which contains language from DOMA that 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 opposite-sex spouses.

DATES: Comments must be received on or before August 22, 2014.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AM90,'' using either of the following methods:
    Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected].
    Mail: Brenda Roberts, Acting Deputy Associate Director, Pay and 
Leave, Employee Services, U.S. Office of Personnel Management, Room 
7H31, 1900 E Street NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Kurt Springmann by telephone at (202) 
606-2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing a proposed regulation to revise the definition of 
spouse for purposes of the Family and Medical Leave Act (FMLA) under 5 
CFR 630.1202 based on the June 26, 2013, decision of the United States 
Supreme Court, 133 S. Ct. 2675 (2013), invalidating Section 3 (1 U.S.C. 
7) of the Defense of Marriage Act (Public Law 104-199, 110 Stat. 2419 
(1996)). This change will permit Federal employees who are in legal 
marriages with same-sex spouses to use their leave entitlement under 
the FMLA in the same manner as Federal employees who are in legal 
marriages with opposite-sex spouses.

Background

    Two Federal agencies administer regulations governing FMLA. The 
Department of Labor (DOL) issues regulations for title I of the FMLA, 
which covers non-Federal employees and certain Federal employees not 
covered by title II. OPM issues regulations for title II of the FMLA, 
which covers most Federal employees. Title II of the FMLA directs OPM 
to prescribe regulations that are consistent, to the extent 
appropriate, with regulations prescribed by the Secretary of Labor to 
carry out title I of the FMLA. (See 5 U.S.C. 6387.)
    On July 23, 1993, OPM issued interim regulations (58 FR 39596) to 
implement title II of FMLA. The interim regulations adopted the 
definition of spouse used by DOL in its regulations implementing title 
I of FMLA. Under the interim regulations, OPM 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.''
    On September 21, 1996, the Defense of Marriage Act (DOMA) was 
enacted. Section 3 of DOMA defined the terms marriage and spouse for 
purposes of Federal law as follows: ``In determining the meaning of any 
Act of Congress, or of any ruling, regulation, or interpretation of the 
various administrative bureaus and agencies of the United States, 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.'' In final regulations 
implementing title II of the FMLA, published on December 5, 1996 (61 FR 
64441), OPM revised the definition of spouse in accordance with DOMA. 
The current definition reads as follows: ``Spouse means an individual 
who is a husband or wife pursuant to a marriage that is a legal union 
between one man and one woman, including common law marriage between 
one man and one woman in States where it is recognized.''
    On June 26, 2013, the United States Supreme Court ruled in United 
States v. Windsor that Section 3 of DOMA is unconstitutional. In 
response to this ruling, OPM issued a memorandum on October 21, 2013, 
at http://www.chcoc.gov/Transmittals/Transmittal 
Details.aspx?TransmittalID=5834 informing Federal agencies that the 
definition of spouse used in OPM's FMLA regulations was no longer 
valid. The memorandum made clear that, effective June 26, 2013, an 
employee with a same-sex spouse could use his or her FMLA leave 
entitlement in the same manner as an employee with an opposite-sex 
spouse: To care for a same-sex spouse with a serious health condition 
(including care for a same-sex spouse who gives birth to a child), to 
care for a same-sex spouse who is a covered servicemember with an 
injury or illness incurred or aggravated in the line of duty on active 
duty, or for qualifying exigencies while a same-sex spouse is on 
covered active duty or has been notified of an impending call or order 
to covered active duty status in accordance with the statute at 5 
U.S.C. chapter 63, subchapter V, and the regulations at 5 CFR part 630, 
subpart L.

Definition of Spouse

    In this regulation, OPM proposes to change the definition of spouse 
to remove the DOMA language and to clarify that ``spouse'' means a 
husband or wife as defined or 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. This definition includes a husband or wife 
in a same-sex or common law marriage entered into in a State that 
recognizes such marriages or, if entered into outside of any State, was 
valid in the place where entered into and could have been entered into 
in at least one State.

[[Page 35498]]

    Under this definition, an employee who is legally married to a 
same-sex spouse in one State and who resides or works in a State where 
the marriage is not legally recognized may use FMLA leave for his or 
her spouse. This proposed regulation deviates from DOL's current 
regulatory definition of spouse as ``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.'' (See 29 CFR 825.102 (emphasis added).) However, DOL is 
concurrently issuing a Notice of Proposed Rulemaking that will propose 
to change the definition of spouse. OPM's proposed definition in this 
NPRM is the same as DOL's proposed definition.
    OPM believes that this definition of spouse is appropriate for the 
Federal workforce and that Federal employees would benefit from this 
broader definition. To support an agency's mission, employees may be 
stationed in a State other than the State of their marriage, and, at 
times, relocated throughout the United States and abroad. Accordingly, 
consistent with DOL's Notice of Proposed Rulemaking, OPM believes that 
using this definition of spouse will enable the Federal Government to 
consider the needs of a diverse workforce and provide consistent 
application of policy across the Federal Government. Uniform treatment 
of all Federal employees will make it more likely that employees will 
accept voluntary details and transfers to States where a same-sex 
marriage is not recognized.

Children of Same-Sex Couples

    By clarifying that a same-sex spouse qualifies as a spouse for 
purposes of the FMLA, children of an employee's same-sex spouse now 
qualify as stepchildren because their parents are in a legal same-sex 
marriage. Same-sex spouses who stand in loco parentis to the spouse's 
child are already entitled to take FMLA leave to care for the child. 
Additionally, the proposed rule clarifies that same-sex spouses are 
able to take leave to care for their spouse's child by virtue of being 
the child's stepparent regardless of whether they stand in loco 
parentis. For information about the ability of employees to take FMLA 
leave for the children of their domestic partners, employees should 
review the OPM memorandum CPM 2010-15, sent to agencies on August 31, 
2010, titled ``Interpretation of `Son or Daughter' Under the Family and 
Medical Leave Act,'' available at www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=3122.

Conforming Amendments

    We are also proposing conforming amendments to revise the 
definition of parent and add a definition for State to align with DOL's 
definitions of these terms. DOL revised its definition of parent on 
November 17, 2008, at 73 FR 67934, to include adoptive, step, or foster 
parents. This change will permit an employee to use FMLA leave to care 
for a stepparent who did not stand in loco parentis to the employee 
when the employee was a child. The definition of State clarifies that 
the term, as used in the definition of spouse, includes the District of 
Columbia and any Territory or possession of the United States.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it will apply 
only to Federal agencies and employees.

List of Subjects in 5 CFR Part 630

    Government employees.

U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
    Accordingly, OPM proposes to amend 5 CFR part 630 as follows:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 5 U.S.C. 6311; Sec.  630.205 also issued under Pub. 
L. 108-411, 118 Stat 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  630.306 and 
630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102-484, 106 
Stat. 2722, and Pub. L. 103-337, 108 Stat. 2663; subpart D also 
issued under Pub. L. 103-329, 108 Stat. 2423; Sec.  630.501 and 
subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974 
Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H 
also issued under 5 U.S.C. 6326; subpart I also issued under 5 
U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, and Pub. L. 103-103, 
107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L 
100-566, and Pub. L. 103-103; subpart K also issued under Pub. L. 
105-18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and 
Pub. L. 103-3, 107 Stat. 23; and subpart M also issued under 5 
U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.

0
2. In Sec.  630.1202, the definitions of parent and spouse are revised 
and the definition of State is added in alphabetical order to read as 
follows:


Sec.  630.1202  Definitions.

* * * * *
    Parent means a biological, adoptive, step, or foster father or 
mother, or any individual who stood in loco parentis to the employee 
when the employee was a son or daughter as defined below. This term 
does not include parents ``in law.''
* * * * *
    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 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. 
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, was valid in the place 
where entered into and could have been entered into in at least one 
State.
* * * * *
    State means any State of the United States or the District of 
Columbia or any Territory or possession of the United States.
* * * * *
[FR Doc. 2014-14514 Filed 6-20-14; 8:45 am]
BILLING CODE 6325-39-P