As almost everyone knows, the U.S. Supreme Court  issued two blockbuster decisions on gay marriage, U.S. v. Windsor, which struck down the Defense of Marriage Act’s ("DOMA") definition of marriage for the purposes of federal law, and Hollingsworth v. Perry, which struck down California’s "Proposition 8" prohibiting same-sex marriage in that state.  Those decisions will likely have significant effects on employers, such as with respect to employee benefits, health care and tax issues related to employees with same-sex partners.  For example,read here for a detailed discussion of how the Supreme Court’s decisions may impact employee benefits.

Those decisions, particularly Windsor, also will have an immediate impact on employee coverage under the federal Family Medical Leave Act ("FMLA"), which requires covered employers to provide up to 12 weeks per year of unpaid leave to eligible employees for qualifying reasons (more leave may be required in certain situations, such as leave related to military duty).  One such qualifying reason entitles an employee to take leave to care for a family member, such as a family member with a serious health condition.  FMLA specifically defines family members to include a "spouse," which is further defined to mean 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 CFR 825.122.  Despite the fact that states have begun recognizing same-sex marriage in recent years, because the DOMA specifically defined marriage as only between a man and woman for the purposes of federal law, the DOMA basically overrode those states’ laws for the purposes of FMLA coverage to spouses.

No longer.  Windsor invalidated the DOMA definition of "spouse" as an unconstitutional violation of the Fifth Amendment’s equal protection clause.  Therefore, the FMLA definition of "spouse" is no longer limited by the DOMA, and employees in same sex marriages in states that recognize such marriages may now take FMLA-protected leave to care for their same-sex spouses.  Currently 13 states recognize same-sex marriage:  California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont, Washington, and also the District of Columbia.   Employers with employees residing in those states should evaluate their FMLA policies and practices immediately to ensure they are in compliance under the new post-Windsor interpretation of "spouse" under FMLA.

Some additional points to keep in mind:

  • The FMLA definition of "spouse" depends on the state law in the state in which the employee resides, not in which he or she was married.  FMLA does not cover leave to care for same-sex spouses for employees who don’t reside in a jurisdiction that recognizes same-sex marriage (currently only those 14 jurisdictions listed above).
  • Many states have enacted their own family leave laws similar to FMLA that specifically cover leave for same-sex spouses regardless of whether same-sex marriage is legally recognized in the state, such as the Oregon Family Leave Act ("OFLA").  Employees in those states would already be eligible to take leave to care for same-sex spouses as a matter of state law even when not covered by FMLA after Windsor (Oregon does not yet recognize same-sex marriage). 
  • Note that in states with same-sex marriage and state family leave laws providing leave to care for same-sex spouses, employees with same-sex spouses may now actually have less available leave each year than before Windsor, strangely.  That is because, before Windsor any leave to care for a same-sex spouse would only count against the employee’s bank of available leave under state law, but not under FMLA, which the employee was free to use for other reasons (such as caring for a child, related to the employee’s own serious health condition, etc.)  Now the leave related to caring for a same-sex spouse will run concurrently under both FMLA and state law.
  • Employers can always provide family leave benefits more generous than what FMLA or related state laws like OFLA require.  So employers can of course provide leave to employees to care for same-sex spouses as a matter of company policy, even when not required by FMLA.
  • Employers may request supporting documentation from employees requesting leave to determine FMLA eligibility; this would likely include requesting marriage certificates or similar documents to confirm that a legal (same-sex) marriage exists.  However, unless this practice is applied equally to heterosexual couples, it may not be advisable as requesting such certifications for only employees in same-sex marriages could create the perception of sexual orientation discrimination.
  • Remember, an employee can usually always take FMLA leave to care for a child for whom the employee acts "in loco parentis" (in the place of a parent), even when the child is not a biological or adopted child.  This is true regardless of whether the employee is in a heterosexual or same-sex marriage.