On February 23, 2015, the United States Department of Labor issued a Final Rule that will allow an employee to take FMLA to care for a same-sex spouse regardless of whether that employee lives in a State that legally recognizes their marital status. The Final Rule will become effective and go into law on March 27, 2015.
Before this time, the FMLA regulations defined spouse according to the laws of the State in which the employee lived. If the State in which the employee lived did not recognize same sex marriage, then the FMLA provided no protection. This will no longer be the case on March 27, 2015. This will only apply, however, if the employee is legally married (not in a civil union or domestic partnership) and employers are permitted to request that the employee provide documentation proving that the employee is validly married (such as a marriage license, etc.).
This amendment to the FMLA will cover same-sex spouses in all states for the first time ever. Expect to see more sweeping employment law changes that will provide more protection to employees in same sex marriages in the years to come.