After Windsor, Expanded Rights for LGBT Employees Under the FMLA

The U.S. Supreme Court’s recent decision in United States v. Windsor, striking the Defense of Marriage Act’s (“DOMA”) definition of marriage as unconstitutional, affects an employee’s entitlement to leave under the federal Family and Medical Leave Act (“FMLA”) — and employers in states that do not recognize same sex marriage still need to pay attention.

Under the FMLA, eligible employees of covered employers may take up to 12 weeks of leave per year to care for the serious health condition of a spouse or because of a qualifying exigency arising out of the spouse being a member of the Armed Forces, or up to 26 weeks of leave per year to care for a covered service member or veteran.  The FMLA regulations state that “spouse” means “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides.”  29 C.F.R. § 825.122(a).  In 1998, a U.S. Department of Labor Wage and Hour Division opinion letter clarified that DOMA, which defined “marriage” as only a legal union between a man and a woman, governed the definition of “spouse” under the FMLA.  This resulted in employees with legal same-sex spouses not being eligible to take FMLA leave to care for their spouse. 

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