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Aug 23, 2013

By Eric B. Meyer

Do you have 50 or more employees working with 75 miles of one another?

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 U.S. Supreme Court’s recent ruling on same-sex marriage, the Labor Department 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.”

Still confusion, despite the clarification

As you know the Family and Medical Leave Act 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?

Probably more litigation coming

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.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.