Employers should review FMLA policies after the Supreme Court’s same-sex marriage decision

In the landmark decision of United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act’s (DOMA) provision which denied federal benefits to gay couples who are legally married in their states.  The Department of Labor (DOL) responded by updating the definition of “spouse” in the Family Medical Leave Act (FMLA).  As DOL updates its policies, employers should consider what changes they need to make to ensure FMLA-compliance with this quickly evolving area of law.

The most crucial change for employers to bear in mind is FMLA spousal leave now applies to certain legally married, same-sex couples.  The definition of “spouse” has been officially broadened for FMLA-purposes.  Per the revised DOL Fact Sheet, a “spouse” now means 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.”  In other words, assuming other FMLA eligibility factors are met, employees are entitled to take FMLA leave to care for same-sex spouses who have a serious health condition if (a) the employees are domiciled in one of the 13 states or the District of Columbia which recognize same-sex marriage and (b) the employees are married to a same-sex spouse recognized by their home state.

In order for companies to determine their FMLA obligations, they should look towards the state law where the employee resides, and not any other state law.  For example, an employee’s eligibility under the FMLA is not dependant on the state law where the employee was married or the state law where the company is located.  What this means is that if a company is located in a state which recognizes same-sex marriage, but the employee lives in a state that does not recognize same-sex marriage, that employee is not FMLA-eligible concerning a same-sex spouse’s serious health condition.  This issue is common and will likely arise even more frequently in the D.C. Metropolitan area because Maryland and the District of Columbia recognize same-sex marriages, while Virginia does not.

Based on this recent change, employers should not only consider revisiting their handbooks and policies, but should also consider reviewing and updating databases and payroll systems to reflect the marital status of employees in order to better determine and keep track of employee-eligibility under the FMLA.  It may also be prudent to update and train supervisors and HR personnel concerning any of these policy changes.