Earlier this month, the U.S. Department of Labor (DOL) updated its guidance to employers and employees on the Family and Medical Leave Act (FMLA). The new guidance defines the term spouse under the FMLA 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.” The DOL updated its guidance in light of the Supreme Court’s decision in U.S. v. Windsor where the court found that the Defense of Marriage Act (DOMA) unconstitutionally prohibited same-sex spouses from receiving the same benefits under federal law as opposite-sex spouses. Same-sex marriage is legal in Maine and, as such, Mainers in same-sex marriages can now take FMLA leave to care for a spouse with a serious health condition. Even before this change in the federal FMLA, Mainers in same-sex marriages could take leave from work under Maine law to care for a spouse with a serious health condition but the federal FMLA provides for more leave than Maine law.
This new guidance from the DOL does not address the situation where a same-sex married couple gets married in a state where same-sex marriage is legal and then moves to a state where it is not. So, for instance, if a same-sex married couple from Maine moved to Texas, this DOL guidance does not address whether one spouse could take FMLA leave to care for the other if he or she suffered from a serious medical condition.
The Human Rights Campaign, a gay rights advocacy group, said the following about this new guidance from the DOL:
This welcome guidance is only the first step. We urge the Department to take additional action to ensure that the every legally married same-sex couple’s marriage is recognized. Specifically, we encourage the adoption of a state of celebration standard that will look to the state where the couple married, rather than where they live, to determine eligibility for this benefit. We will continue to work with the Department of Labor as it implements this guidance and will encourage all necessary action to ensure a broad and fair implementation of this important decision.