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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 23 attorneys engaged exclusively in employee benefits, estate planning and employment law. Seven of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.



Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104





August 15, 2013 

 State and Federal Law Alert


DOL Guidance Confirms FMLA Leave Available to Same-Sex Spouses in States Recognizing Same-Sex Marriage


The U.S. Department of Labor (DOL) has issued guidance on the application of the Family and Medical Leave Act ("FMLA") to same-sex spouses.  In particular, the guidance provides that employees in same-sex marriages are eligible to take FMLA leave to care for their spouses only if they reside in a state that recognizes same-sex marriage.


Among other things, FMLA entitles eligible employees to 12 weeks' leave to care for a seriously ill or injured spouse or to deal with "exigencies" related to their spouse's military deployment.  It also provides employees with up to 26 weeks' leave to care for a spouse who has a military service related illness or injury.


DOL's guidance comes in the wake of the Supreme Court's decision this past June in United States v. Windsor, which struck down the provision in the Defense of Marriage Act (DOMA) limiting the definition of "marriage" and "spouse" under federal laws to heterosexual marriages. (See the Alert of 6/27/2013 for further details.) 


Current FMLA regulations say the term "spouse" only includes a spouse if the marriage is recognized under the laws of the state in which the employee resides.  However, while DOMA was in effect, the federal government would not recognize same-sex spouses.


DOL says the Court's decision means that married same-sex couples residing in states where same-sex marriage is recognized

 must now be afforded spousal FMLA rights.  On the other hand, employers are not required to make FMLA leave available to same-sex spouses who reside in a state that does not recognize same-sex marriage.


DOL Secretary Tom Perez recently commented that this guidance is "one of many steps" the agency will take to implement the Supreme Court's decision in Windsor, leaving open the possibility that current regulations will be changed to give all same-sex marriages FMLA rights, regardless of the state of residence.


The updated guidance is available at: http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf.



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