Last month, the U.S. Supreme Court issued its ruling in United States v. Windsor on the constitutionality of the Defense of Marriage Act of 1996 (DOMA). The Court ruled 5-4 that Section 3 of DOMA is unconstitutional, finding that it violated the due process clause of the Fifth Amendment to the U.S. Constitution, which prohibits denying any person the equal protection of the law. The ruling means that same-sex couples who are married under state law will be treated as married for the purpose of many federal laws that had been interpreted to apply only to opposite-sex couples, including the Family and Medical Leave Act of 1993 (FMLA). The following Q&A discusses the FMLA implications of the DOMA ruling.

How does the FMLA define the term "spouse"?

The FMLA regulations define the term "spouse" as a husband or wife, as defined or recognized under state law for the purpose of marriage in the state where the employee resides, including common law marriage in states where it is recognized.

Before the Supreme Court's ruling, was an employee legally entitled to FMLA leave to care for his/her same-sex domestic partner or same-sex spouse (in those states recognizing same-sex marriage)?

No. According to the Department of Labor (DOL), because the FMLA is a federal law, the federal definitions of "marriage" and "spouse" apply, as established under DOMA. "Marriage" was defined by DOMA as only a legal union between one man and one woman as husband and wife, and "spouse" was defined as only a person of the opposite sex who is a husband or wife. Therefore, as interpreted by the DOL, the FMLA did not provide same-sex domestic partners or same-sex spouses with the right to FMLA leave to provide care to a partner/spouse with a serious health condition.

Before the Supreme Court's ruling, was an employee in a same-sex partnership/marriage eligible for FMLA leave to care for a child of the partnership/marriage?

Yes, if the employee stood in loco parentis to the child. Under the FMLA regulations, an employee is entitled to FMLA leave to care for a "son or daughter" with a serious health condition. The FMLA defines "son or daughter" to include not only biological, adopted, or foster children, but also a child of a person standing in loco parentis. The same definition applies to the term when used in conjunction with family military leave. An individual is considered to be standing in loco parentis when he or she has day-to-day responsibilities to care for and financially support the child.

Does the Court's ruling in the DOMA case change these interpretations?

Yes. The most immediate impact of the Court's ruling is that the FMLA now should be interpreted to provide leave to same-sex spouses residing in those states where same-sex marriage is recognized. For those states in which same-sex marriage is not recognized, the existing rules will continue to govern, i.e., no FMLA leave.

At last count, 13 states have recognized same-sex marriage by statute, while six states prohibit it by statute and 29 others prohibit it by state constitution. Employers operating across multiple states―some of which recognize same-sex marriage and others of which do not―may wish to consider whether they will adopt a uniform policy that extends FMLA leave to same-sex spouses and/or same-sex domestic partners in all states, regardless of state law. Note, however, that voluntarily extending FMLA leave to persons who are not legally entitled to receive it carries with it administration challenges, since leave that is not FMLA leave cannot be counted against an eligible employee’s FMLA leave bank. Moreover, voluntarily granting FMLA leave to those not entitled to receive it can expand the employer’s legal obligation to reinstatement under a detrimental reliance theory.

A complication arises when the same-sex couple lives in a same-sex marriage state, and thus has a valid marriage under that state's law, but works in a state that does not recognize same-sex marriage. For example, a same-sex couple might reside in New York (which passed the Marriage Equality Act in 2011), but one of the spouses might work in New Jersey (which recognizes only civil unions, not marriage, through the New Jersey Domestic Partnership Act). Were the New Jersey-based employee to request FMLA leave to care for his/her partner with a serious health condition, the FMLA would presumably recognize the partners as spouses for purposes of FMLA leave, given the FMLA's reference to the employee's state of residence in the definition of "spouse."

At least in the case of a public employee, however, New Jersey’s recognition of the marriage under New York’s law may be an unsettled question in light of Section 2 of DOMA (not struck down by the Court). This section provides that no state shall be required to give effect to any law of any other state regarding a relationship between persons of the same sex that is treated as a marriage under the laws of such other state.

What if state leave laws already define "spouse" to include same-sex couples?

Some states have passed their own state versions of a family and medical leave act that may define "spouse" to include same-sex domestic partners. For example, employers covered by the California Family Rights Act (CFRA) must provide CFRA leave of up to 12 workweeks for their employees to care for a straight or gay domestic partner with a serious health condition or the child of that domestic partner.

In states that both recognize same-sex marriage and have passed leave laws that provide state leave benefits to same-sex spouses, employers should find the administration of such leave benefits less complicated than before. This is because leave now should qualify as protected under both the state leave law and the FMLA, at least in those cases in which the same-sex employees live and work within the state. Before the DOMA ruling, such employers were required to grant leave under the state leave law, but could not count it as FMLA leave, thus expanding the amount of leave available to such employees. Now, in many cases, such leave for events that qualify under both federal and state law can be counted under both laws concurrently.

Ballard Spahr will be hosting a webinar on July 11, The Changing Definition of Marriage: How the Supreme Court’s Decision on the Defense of Marriage Act Will Affect Employers and Individuals. In this program, panelists will discuss the decision and its effects on employee benefit plans, leave policies, and tax and estate planning, and review steps employers should be taking to ensure compliance and control risk. The registration form is now available.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise on the FMLA and its interplay with other statutes. For more information, please contact Brian D. Pedrow at 215.864.8108 or, Diane A. Thompson at 424.204.4334 or, or the Ballard Spahr attorney with whom you work.

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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