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.
A single Ninth Circuit judge, in his capacity as chair of the Circuit’s Standing Committee on Federal Public Defenders (“the Standing Committee”), recently ruled in the unpublished decision of