In June 2013, the Supreme Court struck down key provisions of the Defense of Marriage Act (DOMA) in United States v. Windsor. More recently, the U.S. Department of Labor (DOL) updated its Fact Sheet (available here) for the Family Medical Leave Act (FMLA) in light of Windsor. Under the FMLA, an eligible employee is entitled to 12 weeks of unpaid, job-protected leave, to care for a spouse with a serious health condition.
Before Windsor and under DOMA, the term spouse was limited to couples of the opposite sex. The DOL's recent update makes clear that the term spouse, as used by the FMLA, means "a husband or wife as defined or recognized under state law for the purposes of marriage in the state where the employee resides, including 'common law' marriage and same sex-marriage." Currently, twelve states, including Maryland and the District of Columbia, recognize same sex marriage. Virginia does not.
Under this revised guidance, employers must provide FMLA unpaid leave to care for the employee’s same sex spouse who has a serious health condition to some of its employees, but not other of its employees. Employers must look to the law of the state where the employee resides, not where he or she works in determining whether the employee in a same-sex marriage is entitled to FMLA leave to care for a spouse. Therefore, employers with employees who commute across state lines, a scenario that is common in the Maryland, Northern Virginia, District of Columbia tri-state area, may have a mixture of applicable FMLA regulations to administer in a single workplace location. For example, under the updated DOL guidance, an employee working in Virginia, but living in Maryland, is entitled to FMLA leave to care for a same sex spouse. However, a co-worker working and living in Virginia is not entitled to FMLA leave to care for a same-sex spouse.
Employers must carefully monitor and update their FMLA leave policies, forms, and procedures in light of the ever evolving federal employment laws. For assistance with review of your employment policies please contact Betsy Davis at (804) 697-2035 or Elliot Fitzgerald at (804) 697-2043.