Same-Sex Marriage And The FMLA: What Are The Rules?

by Ruth Horvatich

Horvatich, Ruth
(402) 341-3070

New Mexico recently became the 17th state to allow same-sex marriage, which further expands the number of employees entitled to leave under the federal Family and Medical Leave Act (FMLA). Last year, the U.S. Supreme Court expanded the population entitled to leave under the FMLA when it ruled that the provision in the Defense of Marriage Act (DOMA) which denied recognition of the marital status to same-sex couples under federal law was unconstitutional. Employers will have to adapt their FMLA leave administration accordingly.

In the United States v. Windsor case, the Supreme Court held that Section 3 of DOMA, which stated that the term “spouse,” as used in any federal law or regulation, “refers only to a person of the opposite sex who is a husband or a wife,” was unconstitutional because the definition and regulation of marriage has belonged exclusively to the states by history and tradition and subject to certain Constitutional guarantees. Because the FMLA contains provisions using the term “spouse,” it was directly affected by the Court’s decision.

The FMLA defines a “spouse” as a husband or wife. In August of last year, the Department of Labor issued a new fact sheet, which recognizes the Court’s decision by defining “spouse” for purposes of FMLA 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’ marriage and same-sex marriage.” As a result, in the case of same-sex marriages, the FMLA does not focus on whether the marriage is lawful in the state where the employer is located, where the employee works, or where the marriage occurred. Rather, it is as defined in the state in which the employee resides.

The seventeen states which have laws on the books recognizing same-sex marriages as lawful include Massachusetts, Vermont, New Hampshire, New York, Connecticut, Iowa, Maine, Maryland, Washington, California, Delaware, Minnesota, Rhode Island, New Jersey, Hawaii, Illinois, and New Mexico plus Washington, D.C. Illinois’s law will not take effect until June 1, 2014. Same-sex marriage became legal in Utah on December 20, 2013, when a federal judge ruled that the state’s same-sex marriage ban was unconstitutional. However, on January 6, 2014, the Supreme Court put a stay on the decision pending the state’s appeal. Additionally, earlier this month, a federal judge in Oklahoma found that the state’s constitutional amendment outlawing same-sex marriage violated the U.S. Constitution, but stayed the effect of the ruling pending appeal.

Employers that are required to provide FMLA leave and which have employees who reside in states where same-sex marriage is legally recognized must provide FMLA leave related to same-sex spouses as provided under the FMLA. However, employers are not required to do so if they do not have employees residing in such states. For example, an employer with an employee who resides in Nebraska, a state which does not recognize same-sex marriage, but works in Iowa, a state which does recognize same-sex marriage, is not required to provide FMLA leave related to same-sex spouses. The converse is also true, namely that an employer with an employee who resides in Iowa, but works in Nebraska, is required to provide FMLA leave related to same-sex spouses.

Employers with employees that reside or potentially reside in states that recognize same-sex marriage basically have two choices going forward regarding administering FMLA. One, employers may choose to provide FMLA leave related to same-sex spouses for all employees regardless of the state in which they reside. Or, two, employers may choose to treat each situation on an employee by employee basis, and with each request look to the state in which the employee resides for the determination of whether it is required to provide FMLA leave related to same-sex spouses.

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