Author: Melissa Burdorf, XpertHR Legal Editor

The Supreme Court recently announced that on March 26-27, 2013, it will address whether the federal Defense of Marriage Act (DOMA) is constitutional, and whether it improperly denies certain federal benefits to partners in same-sex or domestic partnerships. DOMA currently defines marriage as the legal union of one man and one woman. If the Supreme Court decides that DOMA is unconstitutional - then employees in same-sex or domestic partnerships - in states that recognize such partnerships as legal marriages - may receive equal access to rights under the Family and Medical Leave Act (FMLA).

Currently, the FMLA allows eligible employees up to 12 weeks of job-protected leave for several reasons, including caring for a spouse with a serious health condition. As it stands now, the FMLA defines spouse as an employee's husband or wife as recognized under the law of the state where the employee lives. The definition of spouse includes a common-law husband or wife if recognized by state law.

While there are states that recognize same-sex or domestic partnerships as marriages, the FMLA is also governed by DOMA, which does not recognize such partnerships as marriages. As a result, even if a state recognizes same-sex partnerships, because DOMA does not, same-sex or domestic partnerships are not covered under the FMLA. Therefore, these employees can be lawfully denied FMLA leave to care for their spouse.

To further complicate the issue, some states and local governments have leave laws that provide broader coverage than the FMLA, especially as to same-sex partnerships or domestic partners. If an employee is in a state that provides broader coverage to same-sex partnerships/domestic partners, the employee can take state leave to care for his or her same-sex partner, but the employer cannot count this time against the employee's FMLA leave time. So, it is possible that such an employee will be eligible for more leave time than his or her heterosexual counterpart.

For example, if an employee is in a state that provides same-sex partners with up to 12 weeks of leave to care for their spouse and an employee's same-sex partner gets cancer, such an employee can take up to 12 weeks of leave to care for their partner. If, three months later, that same employee finds out that they have developed a heart condition that requires immediate surgery, the employer must now provide that employee with up to another 12 weeks of FMLA leave for the employee's own serious health condition.

Additional Resources

If an employer is in a state that recognizes same-sex marriages, does the employer need to provide FMLA leave to an employee that wants to take care of his or her same-sex spouse?

Supreme Court Takes Up Same-Sex Marriage

New York Appeals Court Strikes Down Defense of Marriage Act

Voters in Four States Show Support for Same-Sex Marriage

FMLA

Benefit Planning and Design

Multistate Employer