U.S. Department of Labor Extends FMLA Coverage to Certain Same-Sex Spouses as a Result of Windsor Decision

In the wake of the Supreme Court's landmark decision in United States v. Windsor, the U.S. Department of Labor (DOL) just announced new guidance extending the protections of the Family Medical Leave Act of 1993 (FMLA) to certain same-sex spouses. New Secretary of Labor Thomas Perez announced the change in an email sent out to DOL employees on August 9, 2013. Secretary Perez noted that a number of the DOL's guidance documents were updated to remove references to the Defense of Marriage Act (DOMA) and affirmed that otherwise eligible employees in certain same-sex marriages must be allowed to take FMLA leave to care for their same-sex spouses suffering from a serious health condition. More specifically, the Secretary's announcement and related updated informal guidance appears to require employers to extend FMLA rights to employees with same-sex spouses where the employee resides in a state that recognizes the same-sex marriage. While this new guidance may seem inevitable and clear on its face in light of Windsor, it actually presents a number of issues for employers to consider as they attempt to comply.

First and foremost, employers with employees in states that recognize same-sex marriage, and employees in states that do not, may want to consider whether to offer FMLA leave to care for a spouse to all employees in same-sex marriages regardless of where the employee lives. Employers who have just one office with employees who live in multiple states around that office will also be faced with this issue. For example, an employer with a sole office in a New Jersey suburb of New York City is likely to have employees who live in Connecticut, New Jersey, New York and Pennsylvania. Under this new guidance, employees who are in same-sex marriages and live in Connecticut and New York – where same-sex marriage is recognized – are entitled to federal FMLA leave to care for their spouse. However, it appears that their colleagues who live in New Jersey and Pennsylvania - where same sex marriages are not performed - may not be similarly entitled.

In response, some employers are likely to extend these benefits to all employees in same-sex marriages regardless of which office they work in – either because it makes administering FMLA benefits easier to have a consistent policy across all employees, or for fairness or employee morale reasons. Other employers may instead adhere to a policy of not extending FMLA benefits to any categories of individuals not otherwise entitled to FMLA leave. Currently, this latter approach seems to be in accord with the announcement from Secretary Perez, but employers considering this strategy should monitor applicable guidance as the DOL's position is subject to change. Factors including the number of employees and how many different states they live and work in will likely play a role in this decision process for employers.         

Employers operating in one or more states with a state-level FMLA law will also need to balance the eligibility requirements under those laws with the new eligibility for same-sex spouses in certain jurisdictions under the federal FMLA. For example, in Washington, D.C., leave to care for a same-sex spouse was already covered under the D.C. FMLA law. Thus, for an employee who works in Washington, D.C., but lives in Virginia, he or she is entitled under the D.C. FMLA to take 16 weeks of leave over a 24-month period to care for a same-sex spouse with a serious health condition. If that employee exhausts that 16 weeks of leave in the first 12 months of that 24-month period and then needs additional leave in the second 12 months to care for his or her spouse, that second stint of leave would not be covered under the federal FMLA because the employee's place of residence does not recognize his or her marriage. Again, this situation is likely to present a number of administrative headaches for employers who do not adopt a more generous policy allowing leave to care for same-sex spouses where the employee otherwise meets eligibility requirements under either the federal FMLA or applicable state FMLA law.

Finally, some may wonder if the DOL's decision is potentially a harbinger of other expected guidance from the Department of Treasury and Internal Revenue Service on the "domicile" versus "celebration" rules. Here, DOL adopted the "domicile" rule, finding that the extension of statutory benefits to same-sex spouses is dependent on their state of residence. The alternative – the "celebration" rule – would determine eligibility based on whether the marriage itself was considered valid under the state or foreign country's law where it took place at the time it occurred. 

Late last week, the Social Security Administration (SSA) issued a press release stating that it would begin issuing certain benefit payments to same-sex spouses. While some have wondered whether the SSA's decision could be interpreted as a signal of how other federal agencies might decide the "domicile" versus "celebration" issue, it appears that the SSA may have arrived at a rule of domicile based on unique and limiting statutory language that defines "spouse" based on the law of the state where the insured worker was domiciled.

However, the FMLA does not include a similarly limited definition of "spouse", i.e., one that would require the use of a "domicile" rule. Thus, some are wondering whether the DOL's decision here may foreshadow how other agencies, including the IRS and DOL, may respond in applying Windsor to other federal statutes, such as ERISA and the Internal Revenue Code. We continue to recommend taking a "wait-and-see" approach as the agencies develop their guidance. Notably, in his announcement, Secretary Perez stated that the DOL will be taking a series of steps in the coming months to further implement the effects of Windsor. Whether these steps will include for purposes of the FMLA the adoption of a spousal definition based not on state of domicile, but celebration instead, remains unclear.

At this time, employers should consult with knowledgeable counsel regarding the DOL's guidance and how it impacts their current FMLA leave practices.