In response to the recent Supreme Court decision that struck down the provision of the Defense of Marriage Act that defines marriage as limited to a union between a man and a woman, the United States Department of Labor recently revised the definition of spouse for purposes of eligibility under the Family and Medical Leave Act (FMLA). The updated definition is as follows:
Spouse: 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.
The FMLA has always permitted eligible employees to take time off to care for a spouse who has a serious health condition. Of course, the new definition of spouse provides much needed clarification for employers doing business in states that recognize same-sex marriage. With the revised definition, if employees and their same-sex spouse both live and work in a state that recognizes same-sex marriage and employees are eligible to take FMLA leave, they may do so to care for their spouse. Unfortunately, the new definition does not cover more complicated situations that often arise for multi-state employers. For example, if employees and their same-sex spouse were legally married in New York but later relocate to a state that does not recognize same-sex marriage, such as Pennsylvania, but continue to work in New York, does the New York employer have to afford FMLA leave for non-resident employees to care for their same-sex spouse? What rights, if any, are afforded in states such as Illinois that recognize same-sex civil unions but not same-sex or “common law” marriage? Clearly, for multi-state employers the issue remains complicated and continues to evolve.