The Defense of Marriage Act (“DOMA”) contained a provision denying marital status to same-sex couples under federal law. Consequently, same-sex couples were denied coverage under the FMLA. In United States v. Windsor, the U.S. Supreme Court held that DOMA provision was unconstitutional.

Based on that landmark decision, it appeared that FMLA leave now would be available to certain same-sex couples. Under the FMLA regulations, the term “spouse” is defined as: “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.” (emphasis added.)

The DOL, in response to the Windsor decision, recently updated its Fact Sheet #28F: Qualifying reasons for leave under the [FMLA] to add same-sex marriage to the definition of spouse. In doing so, the new Secretary of Labor emphasized that otherwise eligible employees in certain same-sex marriages must be allowed to take FMLA leave to care for same-sex spouses suffering from a serious health condition.

How will this affect your workplace? In same-sex marriage situations, the FMLA focuses on whether the marriage is recognized in the state where the employee resides (the domicile rule) – not where the marriage took place (the celebration rule). It also does not matter where the employee works or where the employer is located. This domicile approach admittedly may create administrative recordkeeping headaches for employers with locations across several states or employers with one set location but with employees working from remote locations (i.e., their home) in different states.

To ease this administrative burden, some employers may decide to grant leave to all same-sex married couples without regard to the employee’s residence. If they do, that leave (regardless of how the employer labels it) is not statutorily-provided FMLA leave. Leave may be designated as FMLA only for the reasons enumerated in the law. For example, if an employer grants Tim eight work weeks of leave to take care of his same-sex spouse, and Tim resides in a state that currently does not recognize same-sex marriage, the granted leave is not statutory FMLA leave. Tim still would have the applicable balance of his 12 work week (or 26 work week in certain military leave situations) FMLA allotment to utilize.