September 17, 2013

In light of the U.S. Supreme Court’s decision in United States v. Windsor, which struck down certain provisions of the Defense of Marriage Act (“DOMA”), the U.S. Department of Labor (“DOL”) recently revised its regulations pertaining to the Family and Medical Leave Act (“FMLA”).  Prior to the Windsor decision, in determining FMLA benefits, the DOL relied on Section 3 of DOMA, which limited marriage only to a legal union between one man and one woman and the word “spouse,” which referred only to a person of the opposite sex who is a husband or wife.  Thus, same-sex couples were not entitled to FMLA leave even if they lived in a state that recognized same-sex marriage.

In Windsor, the Court held that Section 3 of DOMA was unconstitutional because the regulation of marriage traditionally rests exclusively with the states.  On August 9, 2013, the DOL issued an internal memorandum to DOL staff members advising them that the DOL has revised its guidance documents to remove any reference to DOMA and to clarify that an employee in a same-sex marriage who resides in a state that allows same-sex marriage is entitled to take FMLA leave to care for the employee’s same-sex spouse with a serious health condition.

Notably, the law of the state where the employee resides applies, not the law of the state where the employee works.  As of August 9, 2013, the following thirteen states (and the District of Columbia) recognize same-sex marriage:  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Conclusion

For many employers, particularly those with employees who live in one or more states, the decision regarding FMLA leave becomes significantly more complicated.  For instance, an employee who resides in Delaware, which recognizes same-sex marriage, will be entitled to FMLA leave to care for a same-sex spouse (with a serious health condition) while an employee who resides in Pennsylvania, which does not recognize same-sex marriage, will not be afforded a similar opportunity.  Employers should carefully review their FMLA policies and procedures to ensure that they comply with the DOL’s recent revisions.