FMLA Leave Eligibility for Same-Sex Spouses
On June 26, 2013, the United States Supreme Court issued its landmark decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) and mandated that the federal government recognize same-sex marriages for the purpose of federal benefits. This decision would extend several federally-mandated employment benefits to same-sex couples, as well as leave privileges under the Family and Medical Leave Act. The decision did not, however, require all fifty states to recognize same-sex marriages and, currently, only 14 states plus the District of Columbia recognize same-sex marriage. The question then arose: what are the effects of employees in the states that do not recognize the validity of their same-sex marriages?
The answer to that question varies depending on what benefits are at issue. The Department of Labor (DOL) has issued Fact Sheets that indicate in some circumstances, a same-sex marriage is valid based on the laws of the “state of celebration,” and in other instances, the validity depends on the laws of the employee’s “state of residence.”
State of Celebration
The DOL first tried to clarify the issue in regard to employee benefit plans, stating employees’ same-sex marriages would be considered valid for benefit and tax purposes if the marriage was valid in the state of celebration. This means that the couple got married in a state that recognizes same-sex marriage. After that, no matter where the employee and his or her same-sex spouse moved, the marriage would be seen as valid when configuring benefit and tax plans.
State of Residence
The DOL recently confused the issue when it updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. The FMLA refers specifically to an employee’s spouse, and the DOL updated the Fact Sheet to define spouse as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.” This means that, even if a couple was married in a state that recognizes same-sex marriage, if they move to a state that does not they will not be eligible for leave benefits under FMLA. This could cause many complications for employers and employees alike, and some expect the DOL to update the Fact Sheet again in the coming months.
Though Oregon does not yet recognize same-sex marriage, however state law does provide leave benefits for employees in civil unions and domestic partnerships. Therefore, same-sex spouses in Oregon would be eligible for state leave benefits under the Oregon Family Leave Act (OFLA), but not for leave under the federal FMLA.
The new benefits and requirements after DOMA can be confusing for both employees and employers. If you have any questions regarding FMLA or OFLA, or believe you have been wrongfully denied leave, call HKM Employment Attorneys today.