As reported in the Wall Street Journal (“U.S. Extends Family Leave to Same-Sex Couples,” August 9, 2013, by Melanie Trottman and Kris Maher) and Employment Law 360 (“Labor Dept. Extends FMLA Coverage To Same-Sex Spouses,” August 12, 2013, by Alex Lawson), the U.S. Department of Labor (“U.S. DOL”) Secretary Tom Perez told agency employees in a memo that U.S. DOL guidance documents had been revised to remove references to the Defense of Marriage Act (“DOMA”), and explain that FMLA benefits for same-sex spouses are available in states that recognize same-sex marriage.  The fact that such benefits are only available in states that recognize same-sex marriage was confirmed by a Labor Department Spokesman as reported by Employment Law 360.  The U.S. DOL choose not to post the memo to agency employees on its website or issue a press release regarding the memo.  The U.S. DOL guidance comes in the wake of the U.S. Supreme Court’s June 26, 2013 historic decisions on same-sex marriage in United States v. Windsor,  No 12-307, 570 U.S. ____ (2013), and Hollingsworth v. Perry, No. 12-144 (2013).  The Court’s decision in United States v. Windsor struck down the provision in DOMA which restricted the definition of “marriage” and “spouse” to heterosexual marriages for all federal laws.  The result is that there is now no definition of “marriage” or “spouse” under federal law.

Note that the DOL guidance does not represent a change in the law, as employment lawyers, including this firm, have interpreted the U.S. Supreme Court’s decision as extending federal benefits to same-sex spouses in those thirteen (13) states and the District of Columbia that recognize same-sex marriage.  While New Jersey does not recognize-same sex marriage, New York does, and employers in New York would be affected by the U.S. DOL’s ruling. However, the guidance is an important first step by the U.S. DOL to provide direction to employers as several questions remain such as whether the U.S. DOL will eventually extend FMLA benefits to same-sex couples in states that don’t recognize same-sex marriage, which would likely require new regulations.  Another difficult issue remains as to what employers should do where employees in same-sex marriages move to states where same-sex marriage is not recognized.  Employers are advised to continue to consult with their Human Resources & Employment outside counsel for guidance in this developing area of the law.