Department Of Labor Extends Family And Medical Leave Act To Same-Gender Couples

by Pepper Hamilton LLP

On August 9, the U.S. Department of Labor (DOL) issued regulatory guidance confirming that same-sex married couples are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as heterosexual married couples (Trottman/Maher, “U.S. Extends Family Leave to Same-Sex Spouses,” Wall Street Journal, 8/9/2013). This new DOL guidance will extend FMLA spousal leave entitlements to same-sex spouses in states that recognize same-sex marriages. Currently, the FMLA provides spouses with up to 12 weeks of job-protected, unpaid leave to:

  • care for a spouse with a serious health condition, or
  • deal with certain obligations (including child care and related activities) arising from a spouse being on, or called to, active duty in the military.

Under the FMLA, a “spouse” is “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.” 29 C.F.R. § 825.102. On June 26, the U.S. Supreme Court, in United States v. Windsor, held unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as between persons of the opposite sex for the purpose of many federal benefits. As a result of the Windsor decision, same-sex couples in states where same-sex marriage is legal will become eligible for certain federal spousal benefits that previously had been denied. See our Client Alert, “Supreme Court Rules DOMA Unconstitutional – Employee Benefit Plan Implications,” available at

As a consequence of the Supreme Court’s decision, Labor Secretary Tom Perez announced that the DOL updated numerous guidance documents to remove references to DOMA, and affirmed the availability of spousal leave under the FMLA for same-sex couples.

Because the FMLA currently defines “spouse” to be based on the state law’s definition of marriage in the state where the employee resides, FMLA rights will now extend to same-sex spouses who live in states that recognize same-sex marriage (regardless of the state in which the employee works), unless the DOL issues revised regulations to the contrary. To date, Washington, D.C. and 13 states recognize same-sex marriages – California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington.

Secretary Perez also stated that the FMLA guidance “is one of many steps the department will be taking over the coming months to implement the Supreme Court's decision.” He directed agencies within the DOL to “look for every opportunity to ensure that we are implementing this decision in a way that provides the maximum protection for workers and their families.”

Notably, other federal agencies have also begun implementing changes to the administration of federal benefits and other polices to include providing benefits to same-sex spouses. For instance, the Social Security Administration announced that it would begin processing and paying spousal retirement claims arising from same-sex marriages, and the Office of Personnel Management (OPM) extended certain benefits (health, life, dental, vision and long-term care insurance and the ability to receive deceased spouses’ retirement benefits) to federal employees’ same-sex spouses. The OPM will extend federal benefits for federal workers married to same-sex spouses, even if those workers live in a state that does not recognize their legal union. See Office of Personnel Management, “Fact Sheet: Family and Medical Leave,” available at The Internal Revenue Service has also noted on its Web site that with respect to same-sex couples, it is “reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act [and it] will be working with the Department of Treasury and Department of Justice, and ... will move swiftly to provide revised guidance in the near future.”

We will likely continue to see federal government agencies issue guidance and/or amend regulations related to the extension of certain benefits to same-sex spouses. Employers should closely monitor such changes to applicable federal laws that may affect employees’ leave from work, employee retirement plans, health and welfare plans, and employer-provided fringe benefits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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