More on DOMA’s Demise – The DOL Updates the FMLA

Contributed by Karuna Brunk

As we previously discussed here and here, on June 26, 2013, the U.S. Supreme Court struck down the federal Defense of Marriage Act (“DOMA”) in United States v. Windsor.  In August 2013, the U.S. Department of Labor issued new rules for the Family Medical Leave Act implementing Windsor.  The DOL has amended its definition of “spouse” to include “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 and same-sex marriage.”

This new rule is referred to as “the state of residence rule” because it relies on where the employee lives, as opposed to where a marriage is celebrated.  Under the new rule, an employer is required to provide FMLA leave to an employee seeking leave in order to care for a same-sex spouse with a serious health condition if the employee resides in a state that recognizes same-sex marriage.  Currently only 13 states recognize same-sex marriage – California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. 

In accordance with this new rule, employers should review and revise their leave policies.  If an employer has employees who live in multiple states, it may be tempting to apply a blanket policy that gives leave to care for same-sex partners in all cases, regardless of the employee’s state of residence.  However, remember that if an employer grants job-protected leave to an employee who resides in a state that does not recognize same-sex marriage, that leave cannot be counted as FMLA leave.  For example, if an employee wanted to take leave to take care of his sick, same-sex spouse and he resided in a state that did not recognize same-sex marriage, that employee would be entitled to take the full 12 weeks of FMLA leave for another purpose – to take care of his child, for example – in the same calendar year. 

Additionally, note that the DOL has not expanded the definition of “spouse” to include civil union or domestic partner relationships.  This is especially significant for Illinois employers because Illinois recognizes civil unions but does not recognize same-sex marriage.