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FMLA Benefits for Employees with Same-Sex Spouses

Certain employers must now provide Family and Medical Leave Act ("FMLA") benefits to qualified employees with same-sex spouses as a result of the Supreme Court's recent decision in United States v. Windsor.

On June 26th, the Supreme Court struck down that part of the federal Defense of Marriage Act, commonly known as "DOMA," that defined marriage as being between a man and a woman.  By declaring this federal provision unconstitutional, the Supreme Court delegated to the states the responsibility for legally defining marriage.  This decision means that same-sex couples who have been legally married in a state that recognizes same-sex marriage are entitled to the same federal benefits as opposite-sex married couples.

Under the FMLA, certain employers must permit employees to take unpaid leave for family and medical reasons without affecting their job status or health insurance coverage.  For example, an employee may take 12 workweeks of leave in a 12-month period to care for a spouse who has a serious health condition.  An employee may also take 26 workweeks of leave in a 12-month period to care for a spouse who is an armed service member with a serious injury or illness.
As a result of the Windsor decision, employers in states that recognize same-sex marriage must provide FMLA benefits to those employees with a same-sex spouse.  Currently, only 12 states recognize same-sex marriage, including New York State.  Pennsylvania and Ohio have both refused to recognize same-sex marriage.  However, the Windsor decision requires employers in these states to provide FMLA benefits to an employee who is in a valid, state-recognized same-sex marriage.  The FMLA regulations state that "spouse" is defined by the law of the state where the employee resides, not works.  Thus, if an employee resides in New York and has entered into a same-sex marriage as recognized by the state of New York, then that employee is entitled to FMLA benefits regardless of the state in which the employee works.

Employers may elect to voluntarily extend FMLA benefits to employees who reside in states where same-sex marriage is not recognized, but they should be aware of the effects of this decision.  Any leave to care for a same-sex spouse may not count against the 12 weeks of FMLA entitled leave.  This could result in an employee seeking an additional 12 weeks of leave for an FMLA-qualifying event, such as caring for a sick child, creating up to 24 weeks of leave for that employee.

Further, the Supreme Court's decision did not create clear guidelines for employers.  Accordingly, before implementing any policies to ensure compliance with this decision, employers should consult a member of our Labor and Employment Department.