It has been reported that on Friday, August 9, 2013, the United States Department of Labor (DOL) issued an internal memorandum to its employees affirming that an employee is entitled take leave under the Family and Medical Leave Act (FMLA) to care for a same-sex spouse with a serious health condition. The memorandum states that the DOL has updated documents to remove references to the Defense of Marriage Act (DOMA) and to affirm the availability of leave under the FMLA for same-sex couples who reside in a state that recognizes same-sex marriage. Currently, California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont, Washington and the District of Columbia recognize same-sex marriage. The intended scope of the DOL internal memorandum is unclear at this time. However, the DOL has issued a revised fact sheet (Fact Sheet #28F: Qualifying Reasons for Leave Under the Family and Medical Leave Act) that provides guidance on the definition of the term "spouse" under the FMLA.  We expect that the DOL will issue additional regulatory guidance in the future broadening the protection for same-sex spouses nationwide. 

The DOL's memorandum was issued in response to the United States Supreme Court's ruling in June, which held that Section 3 of DOMA is unconstitutional. Section 3 of DOMA states that the term "spouse" only refers to a person of the opposite sex who is a husband or wife.  Before the Supreme Court's ruling, the DOL interpreted the FMLA to apply the federal definitions of marriage and spouse as established under Section 3 of DOMA and to exclude protection for a member of a same-sex couple who needed time off to care for his or her spouse. 

In contrast, the FMLA's regulations and revised Fact Sheet 28F define "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 in states where it is recognized. Now, after the Supreme Court's decision and in light of the DOL's internal memorandum and revised Fact Sheet 28F, it appears the DOL will interpret the FMLA to provide protected leave to same-sex couples to care for a spouse with a serious health condition, if the employee resides in a state where same-sex marriage is recognized. 

Employers should take the following steps to ensure they are complying with the FMLA: 

  • Inform managers, decision-makers and human resources professionals of the change regarding same-sex marriage. 
  • Recognize that the current FMLA regulations only provide leave to an employee taking leave to care for a same-sex spouse with a serious health condition if the employee resides in a state that recognizes same-sex marriage. 
    • To date, the DOL has not provided written regulatory guidance to employers indicating that FMLA leave is available to care for a same-sex spouse if the employee works in a state that recognizes same-sex marriage, if the employee was married in a state that recognizes same-sex marriage, or if the company has an office in a state that recognizes same-sex marriage. The current FMLA regulations only provide that an employee who resides in a state that recognizes same-sex marriage is covered. 
    • Providing leave to an employee who does not reside in a state that recognizes same-sex marriage in order to care for a same-sex spouse may lead to the employee receiving more than 12 weeks of leave. Leave is only properly designated as FMLA leave if it is taken for one of the qualifying reasons stated in the FMLA and its regulations. Therefore, providing leave to an employee who is not a resident of a state that recognizes same-sex marriage to take care of a same-sex spouse technically does not exhaust his or her FMLA leave allotment. Any further leave requested during the relevant 12-month period would need to be provided under the FMLA if it is FMLA-qualifying. 
  • Update your FMLA leave policy and documents. 
  • Monitor future DOL guidance that is issued to determine whether the definition of who is covered under the FMLA is expanded and whether the residence requirement is maintained. 
  • Consult with an attorney regarding any FMLA leave questions. 

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