DOL Issues FMLA Guidance on DOMA Decision

By Rick Montgomery, JD, Senior Legal Editor for ThinkHR Corporation

On August 9, 2013, U.S. Department of Labor (DOL) issued regulatory guidance on the Family and Medical Leave Act (FMLA) regarding benefits of same-sex couples. The guidance comes on the heels of the United States Supreme Court’s decision in United States v. Windsor that struck down section 3 of the Defense of Marriage Act (DOMA).  The new guidance comes in the form of an updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. The updated 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.”

Under FMLA regulations (29 CFR 825.122), the term “spouse” is defined 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.” However, prior to the Supreme Court’s decision in Windsor, the FMLA’s provisions were also controlled by Section 3 of DOMA, which provided that “…the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife”.  Therefore, even if a state recognized same-sex marriage, DOMA did not recognize the marriage and employers could lawfully deny employees in same-sex marriages FMLA leave to care for their same-sex spouse with a serious health condition.

What does this really mean? The updated guidance simply 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 with a serious health condition.

The Impact:  Here’s what we know:

  • Employees in states that recognize same-sex marriage must be provided FMLA leave to take care of their same-sex spouse with a serious health condition.
  • As of August 20, 2013, California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington recognize same-sex marriage.
  • Please note that the law of the state where the employee resides applies, not the law of the state where the employee works (29 C.F.R. § 825.102).  This could mean that an employer could have employees in the same company location where one employee could be eligible for FMLA and the other not eligible based on state of residence.
  • According to the Department of Labor Secretary Thomas Perez, the guidance is “one of many steps the Department will be taking over the coming months to implement the Supreme Court’s decision.”

Employers are strongly encouraged to review their FMLA policies, procedures and forms to ensure compliance with the updated guidance.

ThinkHR will continue to monitor and report on developments in this area.

Click here to visit the U.S. Department of Labor’s FMLA resources.