The U.S. Department of Labor (the “DOL”) has provided post-DOMA (section 3) repeal guidance on the status of a same-sex spouse for FMLA purposes.
Specifically, the DOL has revised Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. The revision changes the definition of the term “spouse”, for FMLA purposes, to be as follows: Spouse means 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.
Under this revision, for purposes of identifying a spouse under the FMLA, the same-sex partner of an employee will be treated as a “spouse” , if the employee and partner are in a relationship recognized as a marriage by the state in which they reside. Thus, when the state of residence treats the relationship as being a marriage, the employee , if otherwise eligible for FMLA leave, could take the leave: (1) to care for his or her same-sex partner with a serious health condition, (2) to handle a qualifying exigency arising out of the fact that the same-sex partner is a military member on covered active duty or (3) to care for the same-sex partner, if the partner is a covered service member with a serious injury or illness .
The DOL has not yet revised the FMLA regulations to reflect the repeal of section 3 of DOMA. The regulations currently indicate that status of an individual as a spouse depends on the state of residence, similar to the revised definition in Fact Sheet 28F.