FMLA Leave Must Now Be Made Available to Employees with Same-Sex Spouses


By David Cole
The sweeping effects of the Supreme Court’s decision in U.S. v. Windsor, in which it struck down the Defense of Marriage Act (“DOMA”) as unconstitutional, are coming into greater focus.  Many employers may already be aware of the implications to their employee benefits plans and immigration benefits.
In addition, the Department of Labor has updated its FMLA Fact Sheet #28F to specifically provide that the word “spouse” in the FMLA now includes same-sex spouses in states where same-sex marriages are legal.  In other words, in states where same-sex marriage is legal, employers must now provide FMLA leave to employees who need to care for a same-sex spouse who has a serious health condition or to care for a covered service member who is a same-sex spouse.  Employers should immediately review their policies and make any necessary changes.
It is important to note, however, that the FMLA still does not require for leave to care for a domestic or civil union partner.  This is because the statutory language of the FMLA uses the word “spouse,” which only covers employees in a marriage (both opposite-sex and same-sex), but not employees in a domestic or civil union.   Of course, employers can choose to voluntarily provide leave to employees who want to care for a domestic or civil union partner, but they cannot count that time against the employee’s FMLA leave entitlement.