Following the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (June 26, 2013) which struck down provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married same-sex couples, the U.S. Department of Labor (DOL) has announced new guidance affirming the availability of spousal leave based on same-sex marriages under the FMLA. The updates clarify the definition of “spouse” for Title I of the FMLA, which applies to covered private-sector employees and any covered public agency. Pursuant to this new guidance, the definition of “spouse” for purposes of FMLA leave means “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 effective date of the expansion of employees who are eligible for FMLA benefits to include legally married, same-sex couples is June 26, 2013, the date of the Windsor decision. 

In light of this new guidance, employers with employees residing in states where same-sex marriages are recognized should review their FMLA policies and procedures to ensure that they provide leave for all eligible employees, including those in a same-sex marriage, to care for the employee’s spouse. Employers operating in states with a state leave law will also need to review their policies and procedures to ensure that an employee’s right to FMLA is properly coordinated with his or her right to leave under the state law.