On August 9, 2013, U.S. Department of Labor (“DOL”) Secretary Thomas E. Perez issued guidance clarifying that same-sex spouses are eligible for certain Family Medical Leave Act (“FMLA”) protections. Sec. Perez’s memorandum arrived on the heels of the U.S. Supreme Court’s decision in United States v. Windsor, wherein a 5-4 majority invalidated Section 3 of the Defense of Marriage Act (“DOMA”), which had effectively banned same-sex marriage under federal law. Following the Windsor decision, states were free to define “marriage” and “spouse” without federal legislative intrusion.
In his memorandum, Sec. Perez noted that the DOL had begun to implement the changes necessitated by Windsor, including updating its guidance related to same-sex marriage. Sec. Perez explained that the updated guidance removed references to DOMA and “affirm[ed] the availability of spousal leave based on same-sex marriages” under the FMLA.
Specifically, the DOL has already amended Fact Sheet 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. After the amendment, the definition of “spouse” now reads: “Spouse 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.” This definition comports with the Windsor decision by leaving it to each state to determine the applicable definitions under the law. However, the revised definition does not change anything for same-sex spouses in states that do not recognize same-sex marriage.
Sec. Perez also noted that the DOL would take further steps over the next few months in order to fully comply with the Court’s decision invalidating DOMA Section 3.