[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.

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

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]
 BILLING CODE 6325-39-P