We have been receiving calls from employers struggling to administer Family and Medical Leave Act (FMLA) leave requests from employees lawfully married to a same-sex spouse in one state but residing in states that do not currently recognize same-sex marriages. These employers desire to be consistent toward all of their married employees but are unclear about the requirements for granting FMLA leave to an employee caring for a same-sex spouse.

In the U.S. Supreme Court Windsor decision the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which had defined marriage as only between members of the opposite sex. However, Windsor did not strike down Section 2 of DOMA, which provides that states have the right not to recognize same-sex marriages from other states. Thus, state laws that currently define marriage as only between individuals of the opposite sex, like Ohio (mini-DOMA states), are not affected by Windsor.

This presents a conundrum for employers with employees residing in mini-DOMA states and in states recognizing same-sex marriages, because the definition of “spouse” in the FMLA regulations provides that a “husband or wife is defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.” This means that, unless the FMLA regulations are changed (which is a priority of President Obama), employers must keep updated records on the employee’s residence to determine whether same-sex spouses are covered under the FMLA. They cannot simply rely upon a couple’s state of marriage celebration to determine FMLA benefits.

Currently, an otherwise FMLA-eligible employee who resides in CA, CT, DE, IA, IL, ME, MD, MA, MN, NY, RI, VT, and WA and Washington, D.C., is entitled to take FMLA leave to care for his/her same sex spouse, or for qualifying exigencies arising out of that spouse’s active military duty. However, in those same states (and Washington, D.C.), the employer can limit same-sex spouses both employed by employer, to a total of 12 (not 24) weeks for both employees for certain FMLA leaves (e.g., the adoption of a child).

For employees residing in mini-DOMA states, same-sex spouses are not recognized as spouses under the FMLA. Some employers may be tempted to avoid the administrative headache associated with distinguishing among employees based on residency and simply extend “FMLA-like” leave to employees caring for same-sex spouses. An employer may do so; however, under those scenarios, the employer may not count leave caring for a same-sex spouse as FMLA leave against an employee residing in a mini-DOMA state. Such an employee would be entitled to an additional 12 weeks of leave in a 12-month period to care for his/her child, parent or own serious health condition, even if he/she took 12 weeks to care for their same-sex spouse during the same timeframe.