On Friday, the U.S. Department of Labor issued an internal memo to its employees clarifying its stance on the application of FMLA to same sex couples. Eligible employees may take time off from work under the Family and Medical Leave Act (“FMLA”) when caring for a spouse of the same sex, provided the couple is legally married and lives in a state that recognizes same-sex marriage. This new guidance follows the Supreme Court’s decision striking down the portion of the Defense of Marriage Act (DOMA) that had denied federal benefits to same-sex couples. However, because FMLA regulations already defined “spouse” according to the marriage laws of the state where an employee resides, the DOL’s update is a minimal reaction to the Court’s ruling. FMLA coverage for same-sex couples still only applies to legally married same-sex couples living in the 13 states (and the District of Columbia) that recognize same-sex marriage. Employees in same-sex domestic partnerships, same-sex civil unions, or legally married same-sex couples who move to a state that does not recognize same-sex marriage are still left out.
If you are in a same sex marriage, take care to live in a state that respects the union. Moving can result in the elimination of your FMLA coverage.