DOL Guidance Confirms Same-Sex Spouses' Entitlement to FMLA Leave
Author: Melissa Burdorf, XpertHR Legal Editor
August 15, 2013
The US Department of Labor (DOL) has updated a fact sheet and several other guidance documents to affirm the availability of spousal leave under the Family and Medical Leave Act (FMLA) for same-sex married couples residing in states where their marriage is recognized and to remove references to the Defense of Marriage Act (DOMA). The DOL's blog provides direct links to all updated documents.
- California;
- Connecticut;
- Delaware;
- Iowa;
- Maine;
- Maryland;
- Massachusetts;
- Minnesota;
- New Hampshire;
- New York;
- Rhode Island;
- Vermont; and
- Washington.
The DOL's actions follow the Supreme Court's ruling in United States v. Windsor, in which the Court invalidated a section of DOMA that had defined a spouse as a person of the opposite sex who is a husband or a wife. Before Windsor, DOMA's definition of spouse applied to the FMLA, so that same-sex married couples were not allowed to take FMLA leave to care for their spouse. After Windsor, the word spouse must be interpreted in accordance with the FMLA's regulations, which say:
A 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.
Therefore, the FMLA now applies equally to same-sex couples legally married and living in states that recognize same-sex marriage or states that give validity to same-sex marriage legal in other states, as it does to heterosexual married couples. Currently, the following states and the District of Columbia allow for the recognition of same-sex marriages:
New Mexico recognizes the validity of marriages legally performed in other states and allows for the recognition of same-sex marriages. In fact, New Mexico's Attorney General issued an opinion stating that a same-sex marriage that is valid under the laws of the country or state where it was consummated would likewise be found valid in New Mexico. Until further guidance comes down from the DOL, same-sex couples who work or are married in states that recognize same-sex marriages, but live in states that do not, will not be entitled to FMLA leave.
While the DOL has not issued any formal regulatory guidance, the Wall Street Journal reported that DOL Secretary Thomas Perez issued a memo to his staff on the impact of the Windsor decision. In his memo, Secretary Perez is reported as saying that the Windsor case represents "a historic step toward equality for all American families." Perez is also quoted as saying that the updates to the FMLA's guidance documents are just "one of many steps" the DOL will take over the coming months to implement the Windsor decision.
XpertHR will continue to report on the DOL's initiatives in this area.