Employers should consider promptly reviewing and, if necessary, revising their FMLA policies, procedures and forms to ensure compliance with the DOL's updated guidance on same-sex spouses.
On August 9, 2013, U.S. Department of Labor (DOL) Secretary Thomas Perez issued an internal memorandum to DOL staff members on the Department's efforts to implement the U.S. Supreme Court's recent decision in U.S. v. Windsor, which struck down as unconstitutional the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.
The brief memorandum advises staff members that the DOL has updated several guidance documents "to remove references to DOMA and to affirm the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (FMLA)." Specifically, the DOL Wage and Hour Division updated Fact Sheet #28F, which addresses "Qualifying Reasons for Leave under the Family and Medical Leave Act."
The Fact Sheet now defines "spouse" as "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." The updated guidance document clarifies that an employee in a same-sex marriage who was married and resides in a state that allows same-sex marriage is entitled to take FMLA leave to care for the employee?s same-sex spouse (who has a serious health condition).
Additionally, the DOL updated its November 18, 1998, FMLA Opinion Letter, which references DOMA's definition of marriage, to include the following notice: "This letter is under review in light of the U.S. Supreme Court's decision in UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., which held the referenced provision in the Defense of Marriage Act (DOMA) to be unconstitutional."
The Secretary's internal memorandum further advises DOL staff members that updating guidance documents "is one of many steps the Department will be taking over the coming months to implement the Supreme Court's decision" and that DOL Agency Heads have been directed "to look for every opportunity to ensure that [the Department is] implementing this decision in a way that provides the maximum protection for workers and their families."
Employers should consider promptly reviewing and, if necessary, revising their FMLA policies, procedures and forms to ensure compliance with the DOL's updated guidance on same-sex spouses. Employers should also consider whether to extend FMLA-equivalent spousal leave benefits to employees in same-sex marriages who reside in states that do not allow same-sex marriage. Duane Morris will continue to monitor developments in this area.