On June 26, 2013, the United States Supreme Court in United States v. Windsor struck down the Defense of Marriage Act (“DOMA”) which had defined “marriage” as a legal union between one man and one woman as husband and wife, and “spouse” as a person of the opposite sex who was a husband or a wife.  As a result, same-sex couples who are legally married are considered “spouses” for federal law purposes and may take advantage of government benefits and tax breaks previously reserved for heterosexual spouses.  The Windsor decision also effects employers’ obligations under the Family and Medical Leave Act (“FMLA”).


The FMLA allows eligible employees to take leave to care for a family member with a serious health condition.  Family member includes an employee’s “spouse”, which is defined under the FMLA regulations 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 in States where it is recognized.”  While this definition refers to state law, FMLA leave had not been previously available to same-sex spouses because the U.S. Department of Labor (“DOL”) had taken the position that it was bound by DOMA’s definition of “spouse.”


Following the Windsor decision and according to a literal reading of the FMLA’s definition of “spouse”, an employer would be obligated to provide FMLA leave to a same-sex spouse residing in a state that recognizes same-sex marriage to care for his or her spouse who is suffering from a serious health condition.  It is important to note that pursuant to the definition the employee need not work in a state that recognizes same-sex marriage as long as he or she resides in one.  Under the current regulations, however, an employer does not appear to have an obligation to a same-sex spouse residing in a state that does not recognize same-sex marriage like in Florida.  For national companies, this may create an uneven distribution of employment benefits where some of an employer’s workforce resides in states that recognize same-sex marriage and some reside in states that do not. Hopefully, the DOL has plans to provide employers with guidance on these issues.