FMLA leave and same-sex spouses

published in McAfee & Taft EmployerLINC Update | September 4, 2013


By Charlie Plumb

After the U.S. Supreme Court handed down its decision regarding same-sex marriages in United States v. Windsor this summer, a number of governmental agencies charged with administering employment laws have issued explanations about how they intend to apply the high court’s ruling. Following that trend, the U.S. Department of Labor recently announced its application of the ruling to the Family and Medical Leave Act (FMLA).

Under the FMLA, an eligible employee may take up to 12 workweeks of FMLA leave in a 12-month period to provide care for his or her spouse. On August 13, 2013, the U.S. Department of Labor issued “Fact Sheet #28F: Qualifying Reasons for Leave Under the Family and Medical Leave Act.” For purposes of FMLA leave, the August 13 announcement explained “spouse” would include same-sex spouses for employees who reside in states that recognize same-sex marriages.

It’s important to note that the Department of Labor’s announcement focuses on the residence of the employee — not where the employer is located. The DOL’s interpretation poses a challenge for companies with employees in multiple states. Presently, Oklahoma law does not recognize same-sex marriages. That means employees who reside in Oklahoma — regardless of where their employer is located – are not entitled to take FMLA leave to care for same- sex spouses.

The FMLA permits an employer to be more generous with leave than the law affords. From a consistency and ease-of-administration standpoint, some employers are considering granting FMLA leave for the care of same-sex partners for all employees, regardless of their state residence.