In light of the Supreme Court’s recent decision in United States v. Windsor, the U.S. Department of Labor (DOL) has just issued updated guidance for employers concerning the rights of same-sex spouses under the Family and Medical Leave Act (FMLA). As you may recall from our earlier blog post on the legal implications of the Windsor case, in a 5-4 ruling, the Supreme Court struck down a key provision of the Defense of Marriage Act, which defined marriage under federal law as “a legal union only between one man and one woman as husband and wife.” 

The updated Fact Sheet #28F issued by the DOL Wage and Hour Division entitled “Qualifying Reasons for Leave under the Family and Medical Leave Act” now defines a “spouse” under the FMLA 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.” As a result, an eligible employee in a same-sex marriage who was married and resides in a state that recognizes same-sex marriages is entitled to up to 12 weeks of leave in a 12-month period to care for a seriously ill spouse or for activities associated with a military spouse’s deployment, and up to 26 weeks of caregiver leave for military spouse who is seriously injured or ill. 

Conversely, there is no obligation to make FMLA spousal leave available to a same-sex spouse who resides in any state that has banned or otherwise does not recognize same-sex marriage, including both Pennsylvania and Ohio. Of course, private employers in states that do not recognize same-sex marriage are free to extend equivalent FMLA spousal leave benefits to same-sex spouses on their own if they wish.

DOL Secretary Thomas Perez has suggested further guidance in this area will be released in the coming months. We will certainly keep you updated on any new developments. In the meantime, if you are a covered employer operating in one of the 13 states that permits same-sex marriage, or the District of Columbia where same-sex marriage is recognized, now is the time to revise your policies, procedures and forms to conform with the DOL’s updated guidance.