On June 26, 2013, the U.S. Supreme Court struck down the definition of spouse in the Defense of Marriage Act (DOMA) as unconstitutional. Employers must now provide leave to care for same-sex spouses under the Family and Medical Leave Act (FMLA) to employees who reside in a state where same-sex marriage is legally recognized.

The following states currently recognize or will legally recognize same-sex marriage in the coming months: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Washington, D.C. also legally recognizes same-sex marriage.

Under the FMLA, eligible employees are entitled to 12 weeks of job-protected leave to care for certain family members, including spouses who suffer from qualifying medical conditions. The FMLA does not provide a specific definition of "spouse" but rather refers to the definition set forth for the purposes of marriage under state law where the employee resides.

Because DOMA had limited the application of federal laws to include only a marriage between opposite-sex partners whenever the definition of "spouse" or "marriage" was at issue, employees were not entitled to FMLA leave to care for same-sex spouses, even if same-sex marriage was recognized by state law. The Supreme Court's decision invalidates this definition, and thus FMLA leave now extends to employees who care for their same-sex spouse in states where same-sex marriage is recognized. 

An employee who is employed in a state that does not recognize same-sex marriage, but who resides in a state which does, would be entitled to FMLA benefits for a same-sex spouse (for example, an employee residing in Minnesota and employed in Wisconsin). This distinction may mean employers are required to provide FMLA leave for the care of a same-sex spouse to some employees, but not others.

Employers should carefully consider how to implement and communicate this potential disparity in handling FMLA leave. If employers decide to allow FMLA leave for same-sex spouses who reside in states where same-sex marriage is not recognized, employers also should be aware of the risk that leave to care for a same-sex spouse may not count against the 12-week FMLA entitlement and the employee could seek an additional 12 weeks of leave for an FMLA-qualifying event (such as for the care of a child), effectively "double-dipping" on FMLA leave entitlement.       

Existing policy language should be reviewed and evaluated to determine whether policies should be revised to avoid confusion or inconsistencies. Policies which include a definition of spouse should be revised to ensure same-sex spouses are appropriately addressed. Additionally, many employers may already extend FMLA leave to same-sex domestic partners. These policies should be evaluated to determine whether domestic partner leave will still be provided, understanding the risk of "double-dipping" highlighted above. Management or human resources professionals who implement and enforce these policies should be made aware of the changes and trained on practices going forward.