DOL offers the definitive word on FMLA and same-sex marriage. Kinda sorta.

fmla.jpegDo you have 50 or more employees working with 75 miles of one another?

If not, see ya Monday.

But if you do, check out the United States Department of Labor’s revised “Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act.

In light of the Supreme Court’s recent ruling on same-sex marriage, the DOL updated the definition of spouse:

Spouse: Spouse 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 you know the FMLA permits eligible employees time off to care for a spouse, son, daughter, or parent who has a serious health condition. So, the new definition of “spouse” matters in states that recognize same-sex marriage.

For example, if an employee and his husband both live and work in Delaware, a state that recognizes same-sex marriage, if the employee is eligible to take FMLA leave for his own serious health condition, he can do the same if his husband suffers from a serious health condition.

No surprise there.

But let’s re-work the previous example: The employee and his husband were legally married in Delaware, but later move to Pennsylvania, a state that does not recognize same-sex marriage. If the employee continues to work in Delaware, does the Delaware employer have to afford FMLA leave to the employee should his husband suffer from a serious health condition? The DOL Fact Sheet does not address this situation.

And then, of course, you have New Jersey, which recognizes civil unions, but not same-sex marriage…and you get the point.

Sounds like some employment lawyers somewhere are going to ring up a lot of billable hours litigating these issues. 

Hey! I’m an employment lawyer somewhere.


  • Stephen Clark

    It seems to me that the Fact Sheet actually does address your hypothetical. It adopts residency, not place of celebration or place of employment, as the contact relevant for determining which state’s law determines the validity of the marriage for federal purposes. Since your hypothetical couple resides in Pennsylvania, which does not recognize their marriage, the employee’s husband would not qualify as a “spouse” under the DOL’s domicile rule.

    It’s strange that DOL-WHD has chosen a domicile rule, since every other agency has put out post-Windsor guidance adopting the place of celebration, not the domicile, as the relevant contact for federal purposes.

    On the other hand, Delaware anti-discrimination law may forbid Delaware employers from treating same-sex spouses differently from opposite-sex spouses for FMLA purposes. Just because FMLA doesn’t require leave does not mean Delaware is forbidden from requiring greater leave, including as a matter of its anti-discrimination law. I don’t think FMLA embodies any federal policy forbidding states from granting same-sex leave, so I don’t think it would somehow preempt Delaware’s requirement of non-discrimination.