New Department of Labor Guidance Explicitly Expands FMLA Leave to Same-Sex Couples

When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (“DOMA”) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, we noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage.  Specifically with regard to the Family and Medical Leave Act (“FMLA”), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.

The Wall Street Journal reported on August 9, 2013, that the U.S. Department of Labor (“DOL”) Secretary Tom Perez has issued internal regulatory guidance to its employees—in light of the Windsor decision—affirming that same-sex married couples can take FMLA leave to care for an ill spouse.  The guidance informed all DOL staff that previous guidance documents have been updated to remove references to DOMA, and that the DOL will continue to look for every opportunity to ensure the DOL is implementing the Windsor decision in a way that provides maximum protection to workers and their families.

A 1998 Department of Labor opinion letter actually found DOMA’s definition of “spouse” to be controlling despite the language of the FMLA regulations, but the updated DOL guidance makes it clear that the state law definition of “spouse” controls.  The effect of the DOL’s new guidance, therefore, is that same-sex married couples residing in Washington, D.C., and the 13 states where same-sex marriage is legal are eligible to take FMLA leave to care for their spouse.

The DOL has yet to explicitly expand the eligibility to same-sex married couples who live in states that do not recognize same-sex marriage, however, the DOL is likely to move in that direction in the future.  In 2010, the DOL expanded FMLA benefits to same-sex parents, making them eligible to take leave to care for a child with whom they do not have a biological or legal relationship.  In July 2013, the Office of Personnel Management, responsible for managing the civil service of federal employees, stated that it is extending benefits to federal employees and retirees in same-sex marriages regardless of their state of residency.

New York employers should ensure that they are providing FMLA leave to otherwise eligible employees in a same-sex marriage to care for an ill spouse.

For more information, please contact Daniel J. Moore at 585-419-8800 / or the Harris Beach attorney with whom you usually consult.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.