On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that federal laws that apply to opposite-sex spouses must apply equally to same-sex spouses. In doing so, the Court invalidated a key provision of the Defense of Marriage Act (DOMA), defining marriage under federal law as a “legal union only between one man and one woman as husband and wife.”

Following this ruling, the U.S. Department of Labor (DOL) issued updated guidance for employers affirming the rights of same-sex spouses under the Family and Medical Leave Act (FMLA). 

As discussed previously, Windsor will significantly impact employee leave entitlement under state and federal law. The FMLA provides eligible employees up to 12 weeks of unpaid, job-protected leave per year for the employee to care for a spouse with a serious health condition. If the spouse is an eligible military servicemember with a serious injury or illness, the employee is eligible for 26 weeks of leave.

Although the FMLA itself defines “spouse” as a husband or wife, (29 U.S.C. § 2611 (13)), the applicable regulations clarify that spouse means “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.” (29 C.F.R. § 825.122.). Until Windsor, this definition was superseded by the definition in DOMA limiting “spouse” to opposite sex couples. Now the definition from the FMLA’s regulations is in effect again. Therefore, same-sex married couples who live in a state that recognizes same-sex marriages or gives validity to same-sex marriages legal in other states, will be entitled to FMLA leave to care for their spouse.

The DOL’s updated Fact Sheet contains a new definition of “spouse” under the FMLA: “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 and same-sex marriage.” The Fact Sheet did not address the definition of “spouse” as it applies to same-sex married couples who reside in states that do not recognize same-sex marriage. The DOL also updated its November 18, 1998 FMLA Opinion Letter referencing DOMA’s definition of marriage, noting: "This letter is under review in light of the U.S. Supreme Court's decision in UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., which held the referenced provision in the Defense of Marriage Act (DOMA) to be unconstitutional."

Accordingly, an eligible employee in a same-sex marriage¹ who was married and resides in a state that recognizes same-sex marriages is entitled to up to 12 weeks of leave in a 12-month period to care for a seriously ill spouse or for activities associated with a military spouse’s deployment, and up to 26 weeks of caregiver leave for military spouse who is seriously injured or ill. However, an employee in a same-sex marriage who resides in any state that does not recognize same-sex marriage is not entitled to FMLA spousal leave.² Private employers in such states certainly have the discretion to extend these benefits to same-sex spouses if they choose to do so.

Labor Secretary Tom Perez has indicated the DOL will be taking many more steps in the coming months to implement the Windsor ruling. Until the DOL issues further guidance, we recommend employers take the following steps:

  • Employers with employees in states where same-sex marriages are recognized should review their FMLA policies and procedures to ensure they provide leave for an employee in a same-sex marriage to care for the employee’s spouse.
  • Employers with employees in multiple states – some recognizing same-sex marriage and some not – may wish to consider permitting all same-sex married employees to take spousal leave to ensure equal treatment. However, before implementing changes to leave policies, the employer should consult legal counsel to determine the impact of the possible changes. For example, if an employee is not legally entitled to use FMLA leave for a same-sex spouse due to the law of the employee’s state of residence, but the employer approves leave to care for the employee’s spouse, the approved leave will not count against the employee’s FMLA entitlement, and the employee will have the full 12 weeks of FMLA leave still available.