Ever since the Supreme Court’s decision in U.S. v. Windsor striking down the federal Defense of Marriage Act (DOMA), employment lawyers have struggled to keep up with the implications of the ruling for various federal and state employment laws. For example, under the Family and Medical Leave Act (FMLA), same-sex spouses prior to the Windsor ruling did not have all of the same leave rights as opposite-sex spouses because federal law did not recognize same-sex marriages. Now that the DOMA has been overturned, the Department of Labor (DOL) has issued updated FMLA guidance remedying this situation, at least for some same-sex couples. Fact Sheet 28F issued by the DOL in August clarifies that “spouse” for purposes of qualifying leave under the FMLA means “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 and same-sex marriage.” As a result, same-sex spouses who reside in one of the states recognizing same-sex marriage should now be entitled to the same leave rights as opposite-sex spouses. Unfortunately, same-sex spouses who move to a state that does not recognize such marriages will not benefit from this guidance. Many commentators believe that help for same-sex spouses falling in this second category will only come through a formal change to the FMLA regulations by the DOL.
The Employment Lawyers 