As has been widely reported, the U.S. Supreme Court struck down the definition of “spouse” as being limited to opposite-sex couples in the Defense of Marriage Act (DOMA) as unconstitutional. As a result, the definition of “spouse” under the federal Family and Medical Leave Act (FMLA) will now include a same-sex spouse if recognized by applicable state law. This means, for example, covered employers must provide an FMLA-eligible employee up to 12 workweeks of job-protected leave to care for the employee’s same-sex spouse with a serious health condition, if the employee resides in a state where same-sex marriage is legally recognized. All other FMLA provisions applicable to a “spouse” also will apply to a same-sex spouse in the same way that they do for an opposite-sex spouse.
In addition to Washington D.C., the following states recognize or will soon recognize same-sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.
FMLA-covered employers should review and update their FMLA policies and practices to ensure compliance with this new requirement.