When the U.S. Supreme Court struck down the Defense of Marriage Act (“DOMA”) in U.S. v. Windsor, we advised that there would be sweeping implications to employers from everything from benefits enrollment to FMLA entitlements. (See DOMA posts from June 26th, June 28th — Immigration Issues and June 28th — Employee Benefits Issues).
The DOL has updated its FMLA Fact Sheet #28F to specifically provide that in states where same sex marriages are legal, the definition of spouse for purposes of FMLA leave includes same-sex spouses.
It is important to note that the FMLA still does not allow for leave to care for a domestic or civil union partner as the statutory language refers to “spouse.” Employers can, of course, choose to grant leave to employees who wish to care for a domestic or civil union partner, but cannot count that time against the employee’s FMLA leave entitlement.
According to Freedom to Marry, 13 states allow same sex marriage and 6 others either recognize civil unions or domestic partnerships or out-of-state same sex marriages. Employers in those states with same-sex marriage need to immediately insure that FMLA leave which is necessary to care for a spouse with a serious health condition or to provide care for a covered servicemember is granted to same-sex spouses. To the extent that policies may also need to be revised, that should also be immediately undertaken.