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
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.