In June, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor. Section 3 of the DOMA defined "marriage" for federal benefits purposes as being between one man and one woman. Now, the Department of Labor has taken steps to extend the protections of the Family and Medical Leave Act to same-sex married couples. The DOL has not issued any new guidelines, but it has revised existing guidance documents to remove references to the DOMA. The DOL has also released a new Field Operations Handbook that includes a section on the FMLA that indicates that FMLA spousal leave entitlements extend to same-sex spouses in states that recognize same-sex marriages. 

As we went to press, there were 13 states that recognized same-sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. In addition, the District of Columbia recognizes such marriages, as well as some counties and Native American tribes. Retail employers in these jurisdictions must be prepared to extend FMLA protection to same-sex spouses and should modify their FMLA policies accordingly.

Retail employers will also need to be aware of the same-sex marriage laws in their neighboring states. As an example, an employer in Missouri (which does not recognize same-sex marriage) might have an employee who is in a same-sex marriage and who lives in Iowa (which does recognize same-sex marriage). Under the DOL's new interpretation, the Missouri employer would probably have to grant spousal FMLA leave to the Iowa employee because it is the state of residence that controls whether the marriage is recognized.

Finally, even retail employers in states that do not recognize same-sex marriage and that do not have conflicting laws in neighboring states will need to keep informed about this ever-growing trend.