In ruling unconstitutional the Defense of Marriage Act (DOMA) provision denying recognition of the marital status to same-sex couples under federal law, the U.S. Supreme Court expanded the population entitled to leave under the federal Family and Medical Leave Act. (For more on the Supreme Court decision, see our article, U.S. Supreme Court Rules Legally-Married Same-Sex Spouses Entitled to Federal Recognition and Lifts California Ban on Same-Sex Marriages.) Employers will have to adapt their FMLA leave administration accordingly.

Court Decision

Section 3 of DOMA stated that the term “spouse” as used in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife.” The Supreme Court held Section 3 was unconstitutional because, subject to certain Constitutional guarantees, by history and tradition, the definition and regulation of marriage has belonged exclusively to the states. The Court determined that Section 3 rejected the long-held principle that the incidents, benefits and obligations of marriage are uniform for all married couples in a state, even though they may vary from one state to the next. Thus, the Court concluded that Section 3 denied protection to same-sex marriage that certain states, such as New York, sought to accord, while effectively granting rights and benefits to heterosexual marriages in those same states in violation of basic due process and equal protection principles to which the federal government must adhere.


The FMLA defines a “spouse” as a husband or wife. The Department of Labor’s 2009 FMLA regulations provide that a “spouse” is “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 in States where it is recognized.” (Emphasis added). Thus, in the case of same-sex marriages, the FMLA focuses not on whether the marriage is lawful in the state where the employer is located, where the employee works, or where the marriage occurred, but whether it is recognized in the state in which the employee resides. Same-sex marriages are lawful in the District of Columbia and California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.

This following table illustrates how the variations in state, employer location and employee residence affect the applicability of “spouse” under the FMLA (key: “SSM” refers to the states that in which same-sex couples are permitted to marry or recognize same-sex marriage; “Non-SSM” refers to the other states):

Click here to view table.

Leave may be designated as FMLA leave only for the reasons specified in the statute and its implementing regulations. Thus, if an employer designates leave as FMLA leave to care for a same-sex spouse, but the employee does not reside in a state that recognizes same-sex marriage, that leave time will not reduce that employee’s 12-week allotment. Employers, therefore, have two options: they can determine leave related to same-sex spouses on an employee-by-employee basis (granting or denying the time based on the employee’s residence); or, they can treat every marriage equally, accepting the consequence that employees whose same-sex spouse resides in a state that does not permit or recognize same-sex marriage may end up with more than 12 weeks of “FMLA” leave.

Confirming and Documenting Same-Sex Spousal Relationships

Two FMLA regulations permit an employer to obtain confirmation of a family relationship (apart from the information that may be obtained with Department of Labor certifications). First, 29 CFR § 825.122(k) allows an employer to request documentation to confirm a family relationship when an employee requests leave to care for a covered servicemember. The regulation provides:

(k) Documenting relationships. For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

The second FMLA regulation, 29 CFR § 302(c), relates to an employee’s FMLA notice obligations, provides, in part:

An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.

These regulations permit an employer to ask for information to confirm whether the leave request qualifies as FMLA leave. 

Applied to a request for FMLA leave to care for a same-sex spouse who is a “covered servicemember,” 29 CFR § 825.122(k) would appear to allow a request for a marriage certificate or similar documents to verify the employee resides in a state that recognizes same-sex marriage. As the regulation allows an employer to request a birth certificate to confirm a family relationship, an employer may reasonably be allowed to request a marriage certificate or similar documents to confirm a spousal relationship. In jurisdictions that prohibit discrimination based on sexual orientation, employers should be more cautious in requesting such documentation, especially if they do not make the same requests of employees in heterosexual marriages. 

Under 29 CFR § 302(c), an employer may ask an employee requesting leave to care for a same-sex spouse whether he or she resides in a state that recognizes the same-sex marriage (if unknown) because the question is “designed to determine whether an absence is potentially FMLA-qualifying.” If the employee is the “spouse,” assuming all other FMLA conditions are met, then the leave qualifies as FMLA leave. On the other hand, if the employee is not the “spouse” because he or she does not reside in a state that recognizes same-sex marriage, then the leave would not be FMLA-qualifying, even if all other FMLA conditions were met.


Employers should review and update their leave policies and employee leave-tracking systems accordingly. They also should train supervisors and managers regarding the new requirements.

Employers granting FMLA leave to employees in a same-sex marriage even though the employee’s state of residence does not permit or recognize same-sex marriage should not designate the absence as FMLA leave because the employee is not a “spouse” within the meaning of the FMLA. 

If an employer grants FMLA leave to an employee who is a spouse in a same-sex marriage, but who is not a “spouse” within the meaning of the FMLA, it may need to disregard the “FMLA” designation when the employee requests leave for a reason that qualifies as FMLA within the same 12-month period selected by the employer for its employees to take FMLA leave (such as for their own serious health condition). Disregarding the earlier designation in these circumstances may be necessary to avoid interfering with the employee’s right to take FMLA leave since the amount of leave time from the earlier designation should not have been deducted from the employee’s FMLA leave entitlement.