• Same-Sex Spouses Are Now Covered By FMLA
  • September 5, 2013
  • Law Firm: Ballard Rosenberg Golper Savitt LLP - Glendale Office
  • In response to the Supreme Court's recent decision overturning the Defense of Marriage Act (DOMA) which had denied federal benefits to legally married, same-sex couples, the Department of Labor ("DOL") recently revised guidance documents with regard to the Family and Medical Leave Act (FMLA).  The DOL revisions clarify that same-sex spouses are now covered by the Family and Medical Leave Act (FMLA) to the extent that an employee's marriage is recognized in the state in which the employee resides.

    The DOL did not issue any new formal, stand-alone guidance but instead revised several existing FMLA guidance documents to remove references to DOMA.

    The revisions also clarify the new definition of spouse under the FMLA to include individuals who have entered into a same-sex marriage. The FMLA Fact Sheet, FMLA PowerPoint, and newly released Field Operations Handbook, provide the following definition of spouse under the FMLA:

    "Spouse means 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 and same-sex marriage."

    The DOL also updated its November 18, 1998 FMLA Opinion Letter referencing DOMA's definition of marriage, noting: "This letter is under review in light of the U.S. Supreme Court's decision in United States v. Windsor, Executor of the Estate of Spyer, et al., which held the referenced provision in the Defense of Marriage Act (DOMA) to be unconstitutional."

    These changes are significant given the FMLA permits eligible employees time off to care for a spouse who has a serious health condition, and this provision now encompasses time off to care for a spouse from a same-sex marriage in the qualifying states.

    In light of the DOL's updated guidance, employers with employees in states where same-sex marriages are recognized (including California) should review their FMLA policies and procedures to ensure they provide leave for an employee in a same-sex marriage to care for the employee's spouse.