Oct 17, 2013

By Carmon Harvey

Lovebirds around the country are increasingly gaining the equal right to lawfully enter into wedlock, regardless of the sex of those entering into the union.

But at this point, not all married couples are created equal, at least when it comes to eligibility for FMLA benefits.

In August, the U.S. Department of Labor issued a revised fact sheet providing guidance on FMLA protections for same-sex spouses in light of the U.S. Supreme Court’s decision in U.S. v. Windsor earlier this year, which struck down Section 3 of the Defense of Marriage Act, altered the federal government’s treatment of same-sex marriages, and increased the number of employees to whom employers must make FMLA leave available.

The DOL’s new post-Windsor guidance, however, does not require all employers across the U.S. to provide FMLA benefits to all of their employees in lawful same-sex unions.

A question of legal definition by the DOL

This is because the Labor Department’s guidance, relying on the present FMLA regulations, defines “spouse” as 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.

Go ahead, read through that one a few more times if you need to. Probably written by one of my esteemed lawyer-colleagues.

In plain English, FMLA eligibility for spousal leave depends on whether the employee’s marriage is recognized by the state in which he or she lives.

This means that an employee in a same-sex marriage who resides in a state that does not recognize same-sex marriage is not eligible for FMLA leave, even if the employee works in a state that does recognize same-sex marriage. (And the operative word here is marriage, not “domestic partnership” or “civil union” or whatever term states have used to characterize legal relationships between same-sex couples.)

As if the FMLA wasn’t already challenging enough to administer.

Employers can voluntarily do more

Of course, the new Labor Department guidance concerns only what leave employers are required to provide under the FMLA. Employers can voluntarily give their employees all of the leave that they want (and may already have policies that grant leave to same-sex couples), although not all such leave can be counted against an employee’s FMLA entitlement. And employers should not forget about additional leave obligations imposed by state or local law for same-sex couples whose unions may be characterized in any number of ways under those laws.

This is the law for the time being, but it is guaranteed to change on a number of fronts in the very near future. If and when our federal government gets back to work, we can expect these types of revisions to be a priority.

Additionally, states already have started the process of looking at their laws to determine whether changes should be made or, as was the case in New Jersey, changes have come through judicial determinations that the failure to classify same-sex couples as “married” violates the equal protection provisions of the state Constitution. Developments like this have erupted a firestorm of litigation across the country that will play out over the next several months (or years).

For those same-sex couples who’ve been lawfully wedded post-Windsor, but have not yet dealt with the “in sickness” part of marriage, they can be hopeful that, by their first anniversary, their federal and state governments will give them a more “traditional” gift in the form of revised laws and regulations that extend FMLA benefits.

And as those benefits are expanded, employers will need to review and modify their leave policies — or they’ll get a little present of their own in the form of an FMLA lawsuit.

This was originally published on Montgomery McCracken’s Employment Law Matters blog.