FMLA Now Covers Same-Sex Spouses

August 29, 2013

The Department of Labor (DOL) has issued updated guidance stating that the right to take leave to care for a spouse with a serious medical condition under the Family and Medical Leave Act (FMLA) now extends to same-sex spouses. The DOL guidance comes as a result of the U.S. Supreme Court's decision in United States v. Windsor, striking down as unconstitutional a portion of the Defense of Marriage Act, which provided, in part, that the federal government would not recognize same-sex marriage, even when such marriages are recognized under state law. It is important to note that the DOL guidance only extends spousal coverage to same-sex spouses when such marriages are recognized under state law in the state where the employee resides. As such, employees who marry a same-sex spouse in a state that recognizes same-sex marriage but who reside in Georgia, or any one of the other 30+ states that specifically ban same-sex marriage, would not be entitled to FMLA leave for the serious illness of his or her same-sex spouse, unless the employer voluntarily allows such leave. All employers need to consider the marriage laws in all the states in which the employer has employees and update their FMLA policies and forms accordingly.

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