By:  Chelcey E. Lieber

As widely reported, and as discussed in our blog post “Supreme Court Rules DOMA Section 3 Unconstitutional”, the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which had defined marriage as a legal union only between one man and one woman. The Court’s 5-4 vote in U.S. v. Windsor means that same-sex couples who are legally married now must be treated in the same manner under federal law as married opposite-sex couples.

What does this mean for FMLA?

As you know, FMLA permits eligible employees to take leave to care for a spouse with a serious health condition. “Spouse” is defined as “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 marriages where it is recognized.” 29 C.F.R. 825.102.

While this definition appears to suggest that state law should have always been looked to in order to determine who is a “spouse,” the Department of Labor (“DOL”) had acknowledged that FMLA was bound by DOMA’s definition of “spouse.” As the Court’s ruling struck down that definition, each state may now decide its own definition of “spouse,” which will determine who is covered by FMLA.

What this Means for Employees Living in States that Allow Same-Sex Marriage

For states that allow same-sex marriage, which now includes California (see our blog post “Marriage Equality Returns to California”) as well as twelve other states – Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington – and the District of Columbia, employees in same-sex marriages living in these states will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when his/her spouse is called to active duty in a foreign country.

Ambiguity for Employees Living in States that DO NOT Recognize Same-Sex Marriage

For states that do not recognize same-sex marriage, which currently includes 36 states, whether the employee is entitled to FMLA leave is more complicated. The FMLA regulations look to the employee’s state of primary residence to determine whether a person is the employee’s spouse. Accordingly, even if the employee was married in one of the thirteen states that recognizes same-sex marriage, s/he is unlikely to be deemed a “spouse” in his/her current state of residence if the state does not recognize the marriage.

There is the argument that the definition of “spouse” should be that of the “state of celebration” – the state where the same-sex union was performed, regardless of the state of residence. It is likely that the DOL will eventually provide clarification. Unfortunately, until then, it is unclear on how these situations should be treated.

Given this landmark ruling, FMLA-covered employers (employers with 50+ employees within a 75 mile radius) should review and update their FMLA policies and practices to ensure compliance with this new requirement.