The U.S. Department of Labor (DOL) on August 9 issued a revised Fact Sheet to provide guidance on Family and Medical Leave Act (FMLA) protections for same-sex couples. The guidance follows the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act and fundamentally changed how the federal government treats same-sex marriages.

According to The Wall Street Journal, which quoted an internal memorandum from Labor Secretary Thomas Perez, the extension of FMLA coverage is but one of many steps that the agency will take to properly implement the Windsor decision. On the same day, the Social Security Administration announced that it will now process and pay out spousal retirement claims for same-sex spouses.

Under the revised DOL Fact Sheet, a "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." This definition comports with the FMLA regulations, which define "spouse" based on the legal definition of marriage in the state of the employee's residence.

The DOL's FMLA "spouse" definition does not cover situations in which an employee in a same-sex marriage resides in a state that does not recognize same-sex marriage, but was married or works in a state that does recognize such marriages. If the DOL wishes to expand the "spouse" definition, it will be unable to do so through fact sheets or interpretive guidance, but instead must act through a public notice-and-comment rulemaking process.

The Fact Sheet contains links to earlier DOL regulatory materials, which refer to other FMLA leave benefits available to same-sex couples. For example, under a 2010 Administrator's Interpretation, an employee may take FMLA leave for a child being raised with a same-sex partner, regardless of whether the same-sex relationship is legally recognized, to bond with the new child or to care for a child with a serious health condition. In another example, an employee who was raised by same-sex parents may take leave to care for a non-adoptive or non-biological parent on the basis of an in loco parentis relationship. In both cases, the right to take leave arises from the in loco parentis relationship, not from the existence of a legally valid same-sex marriage.

Ballard Spahr's Labor and Employment Group routinely assists employers in FMLA matters, including drafting and revising FMLA policies and forms to reflect changes in the law. If you have questions or concerns regarding these issues, please contact Diane A. Thompson at 424.204.4334 or thompsonda@ballardspahr.com, Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com, or the member of the Group with whom you work.


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