This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions. A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers "caring for a spouse."
Let me explain how.
The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition. But who is a "spouse"? As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:
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 in States where it is recognized.
The FMLA's provisions, however, are further governed under federal law by DOMA, which very clearly states that:
. . . the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
So, even if a state allows same-sex marriage, DOMA does not recognize the union. As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses. Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner. The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement.
Let's use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave, the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.
If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses -- at least in states where same-sex marriage is legal.
Insights for Employers
As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.
Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee's 12-week FMLA allotment, since the FMLA does not recognize these relationships. To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.