The Supreme Court’s Defense of Marriage Act decision expands employer obligations under the FMLA, at least in the states that recognize same-sex marriages.  The Court held that Section 3 of DOMA, which states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife,” was unconstitutional. U.S. v. Windsor (US Sup.Ct. June 26, 2013). 

Section 3 had left no doubt that the definition of   “spouse” under the FMLA could not possibly have included a same-sex spouse. With Section 3 gone, that prohibition went with it.

While much can and will be debated about the Court’s decision, the Court said explicitly that the definition of “spouse” under federal law includes a same sex spouse in  “lawful marriages.” Same sex marriages are lawful in 13 states.

The immediate issue is that a same sex spouse  now meets the definition of “spouse” under the FMLA in those 13 states and is entitled to the same benefits and protections under the FMLA as an opposite sex spouse.  That seems pretty clear, or is it? The 2009 FMLA regulations define a “spouse” 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.”

A same sex spouse who lives and works in one of the 13 “same sex” states would seem to meet the definition of “spouse” under the FMLA. But what if the spouse works in one of the 37 “non-same sex” states but lives in a “same sex” state?  In that workplace, the same sex spouse might not be entitled to FMLA leave.

Complicating the issue is that while states typically recognize marriages from other states, Section 2 of DOMA says that a state need not recognize same sex marriages entered into in other states.  It is widely expected that a constitutional challenge to Section 2 is on the horizon.

Stay tuned. There will be more to come on this issue.