[Federal Register Volume 81, Number 68 (Friday, April 8, 2016)]
[Rules and Regulations]
[Pages 20523-20524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08081]
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Rules and Regulations
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Federal Register / Vol. 81, No. 68 / Friday, April 8, 2016 / Rules
and Regulations
[[Page 20523]]
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: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is revising 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 replaces 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: This final rule is effective on May 9, 2016.
FOR FURTHER INFORMATION CONTACT: Kurt Springmann by email at [email protected] or by telephone at (202) 606-2858.
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management is
issuing a final regulation that revises the definition of spouse under
5 CFR 630.1202 for purposes of the Family and Medical Leave Act. This
change stems from the June 26, 2013, decision of the U.S. Supreme Court
in United States v. Windsor, 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)). The revised definition establishes in
regulation that Federal employees who are in legal marriages with same-
sex spouses can use their leave entitlement under 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 FMLA, which
covers non-Federal employees and certain Federal employees not covered
under title II. OPM issues regulations for title II of FMLA, which
covers most Federal employees. Title II of 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 FMLA. (See 5 U.S.C. 6387.) DOL published its final
regulations on the definition of spouse under title I of FMLA on
February 25, 2015, at 80 FR 9989.
On June 26, 2013, the U.S. Supreme Court ruled in Windsor that
Section 3 of DOMA is unconstitutional. Section 3 states in part: ``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.'' OPM's definition of spouse in the FMLA regulations had its
basis in the Section 3 language. In response to this ruling, OPM issued
a memorandum on October 21, 2013, informing Federal agencies that the
definition of spouse used in OPM's FMLA regulations was no longer
valid. (See CPM 2013-14, Family and Medical Leave Act (FMLA) Coverage
of Same-Sex Spouses, at https://www.chcoc.gov/content/family-and-medical-leave-act-fmla-coverage-same-sex-spouses.) The memorandum made
clear that, effective June 26, 2013, an employee in a legally
recognized same-sex marriage, regardless of state of residency, could
use his or her FMLA leave entitlement in the same manner as an employee
with an opposite-sex spouse.
Evaluation of Comments
On June 23, 2014, at 79 FR 35497, OPM published a notice of
proposed rulemaking to change the definition of spouse in the
regulations implementing title II of FMLA to mirror the definition
proposed by DOL for title I employees. OPM also proposed conforming
amendments that would revise the definition of parent and add a
definition for State to align with DOL's definitions of these terms. We
received 27 comments in response to the proposed regulations, of which
24 supported the changes.
The three commenters who opposed the change cited religious and
traditional beliefs as reasons for adhering to a definition of marriage
that applies only to opposite-sex couples. One supported equal benefits
for same-sex couples, but did not agree with redefining marriage as
other than between one man and one woman. Another maintained that the
Government should not impose this change on States that had previously
banned same-sex marriage. The change to the definition complies with
the Supreme Court's ruling in Windsor, which invalidated the language
in Section 3 of DOMA that had limited Federal recognition of marriages
only to opposite-sex marriages, as well as its decision in Obergefell
v. Hodges, 135 S.Ct. 2584 (2015), which held that States are required
to license marriages between same-sex couples and to recognize same-sex
marriages performed in other States. The change is also in accordance
with 5 U.S.C. 6387, which directs that OPM's FMLA regulations be
consistent, to the extent practicable, with those of the Department of
Labor. Moreover, OPM's definition of spouse in these regulations only
applies to Federal employee coverage under FMLA and does not affect
State marriage licensing practices. We note that, to the extent the
commenter is suggesting that a marriage performed in one State should
have no effect in a State that banned same-sex marriage, the Supreme
Court squarely rejected that position in Obergefell.
Six commenters urged OPM to maintain support for the in loco
parentis standard in parent and child FMLA eligibility determinations.
Four of these commenters requested that OPM clarify that the
regulations will not affect its implementation of the DOL
Administrator's Interpretation No. 2010-3, both in how parents may be
determined to stand in loco parentis and in recognizing that more than
two adults may stand in loco parentis to a child.
[[Page 20524]]
OPM noted its continuing use of the in loco parentis standard described
in Administrator's Interpretation No. 2010-3 in the Supplementary
Information to the proposed rule under the section, ``Children of Same-
Sex Couples,'' which referenced OPM's August 31, 2010, memorandum
titled Interpretation of `Son or Daughter' Under the Family and Medical
Leave Act. (See CPM 2010-15 at https://www.chcoc.gov/content/
interpretation-``son-or-daughter''-under-family-and-medical-leave-act.)
As noted in the memorandum, Administrator's Interpretation No. 2010-3
applies only to title I of FMLA; however, OPM has adopted the
interpretation to also apply to employees covered by title II of FMLA.
The memorandum specifies how individuals may be determined to stand in
loco parentis and that neither the law nor OPM regulations restrict the
number of parents a child may have under FMLA.
Two commenters asked that OPM consider amending the definition of
parent to extend eligibility to parents-in-law. The definition of
parent in the regulations derives from the statutory definition at 5
U.S.C. 6381(3). Inclusion of parents-in-law would require a statutory
change; therefore, it is outside the scope of these regulations.
Three commenters noted that the phrase ``in a same-sex or common
law marriage'' used in the definition of spouse could be interpreted as
excluding same-sex common law marriages. We do not see the need to
deviate from DOL's definition on this point. The definition uses the
term ``common law marriage'' without exclusion; therefore, it applies
to all common law marriages, including same-sex common law marriages.
Additionally, OPM's October 21, 2013, memorandum (cited above in the
Background section) makes clear that same-sex spouses in common law
marriages are included in the definition of spouse.
One commenter said the Federal Government should take legislative
action to meet the needs of working families excluded by FMLA because
of the business-size threshold and employee tenure and hours-worked
requirements. These exclusions do not apply to Federal employees
covered by title II of FMLA and, regardless, legislation is outside the
scope of the regulations. The same commenter expressed the need for
paid family leave. FMLA does not authorize paid family leave;
therefore, this comment is outside the scope of the regulations.
A Federal agency suggested adding ``at the time of the marriage
ceremony'' in four places within the definition of spouse to make clear
that, for purposes of the FMLA entitlement, the marriage need only have
been valid in a State at the point in time that the ceremony took
place. We believe that the verb tense used in the definition provides
the needed clarity on this point where applicable. Therefore, we are
not adopting this suggestion.
We made a minor editorial change to the definition of spouse
(changing ``was valid'' to ``is valid'' in subparagraph (2)) to conform
to the definition used by DOL in its title I regulations. We also made
a minor change to the wording of the definition of parent to ensure
coverage not only of individuals who stood in loco parentis to an
employee but also of individuals who still stand in loco parentis to an
employee. Because OPM received no comments requiring further changes to
the definitions provided in the proposed rule, we are adopting the
definitions as final.
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.
Beth F. Cobert,
Acting Director.
Accordingly, OPM amends 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 stands or stood in loco parentis to an
employee meeting the definition of son or daughter 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, is 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. 2016-08081 Filed 4-7-16; 8:45 am]
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