On August 9, 2013, U.S. Department of Labor Secretary Thomas E. Perez sent a department-wide email affirming the availability of spousal leave based on same-sex marriages under the FMLA. This move comes in the wake of the recent Supreme Court decision in United States v. Windsor, which struck down provisions of the Defense of Marriage Act (DOMA). However, this new application still defines “spouse” under the laws of the state where an employee lives, not where he or she was married. The result is a patchwork of FMLA regulation dependent upon each state’s recognition of same-sex marriage.

This new DOL guidance coincides with efforts throughout the federal government, such as with Social Security benefits and IRS tax filings, to interpret and apply the Windsor decision. While the DOL has yet to offer further explanation, other agencies have hinted at expanding coverage based upon the location of marriage rather than the more restrictive focus of where a person lives. Each federal agency is handling the matter in a different way, and the complex nature of the DOL’s regulatory process may slow any such change. Regardless, there are strong indications that the federal government’s handling of this matter will continue to evolve in the near future.

For now, employers are put in a position of having to apply FMLA benefits to same-sex couples in states that recognize the same-sex marriage of an employee, but not in other states. It is also important to note that the regulation currently looks to where an employee resides, not where he or she works. As a result, employers that see employees traveling across state lines for work may see a mixture of applicable FMLA regulations within a single place of business. For example, an employee that works in Virginia but lives in Maryland is eligible for benefits under the FMLA if he or she is in a same-sex marriage. However, that employee’s coworker, working side-by-side in the same Virginia workplace, would not receive FMLA benefits in a same-sex marriage if he or she lives in Virginia.

For national employers, the only way to now maintain a unified national policy across all employees is to recognize same-sex marriage for all employees regardless of where they live. This provides for consistent internal policies and avoids the need to stay on top of a patchwork of state laws that continue to change rapidly. More information about how businesses can respond to Windsor is available online in our Legal News Alert, The Impact of the Supreme Court’s Decision in Windsor (DOMA) on Individuals and Businesses. The article provides an overview of the decision and discusses its effects on: employer and individual taxes; gift and estate taxes; employer policies; employee benefits plans; health care providers; and insurance companies.

In sum, the applicability of federal regulations and benefits to same-sex couples is rapidly developing and the DOL has taken the first step in extending FMLA benefits to some same-sex couples. A change to extend FMLA benefits to same-sex marriages nationwide could be implemented through a regulatory change, rather than requiring action by Congress. This means the law is subject to change with the continuing evolution of regulations. Employers are encouraged to stay in communication with legal counsel to ensure that, as labor regulations for same-sex marriages continue to develop, their policies are consistent with both state and federal law.