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The Windsor Effect On Workplace Rights

Labor and Employment Newsletter | March 18, 2014
By: George C. Morrison

Last year proved to be one of the most tumultuous years in United States history regarding same-sex marriage.   The wake of the United States Supreme Court’s decision in United States v. Windsor, 570 U.S. ___ (2013), resulted in a multitude of additional legal issues, including the definition of “spouse” under the Family and Medical Leave Act (FMLA).  Employers should carefully review and update their FMLA policies and procedures.

The Windsor Decision

In Windsor, Ms. Edith Windsor and Ms. Thea Spyer legally wed in Canada and resided in New York, a state that recognized their marriage when Ms. Spyer died.  The federal government, however, did not recognize the marriage pursuant to Section 3 of the Defense of Marriage Act (DOMA) and required Ms. Windsor to pay estate taxes—taxes that would not have been levied against a married man and woman.  Upon review, the United States Supreme Court held Section 3 of DOMA violated the United States Constitution.

The USDOL Amends the Definition of “Spouse”

Following Windsor, United States Department of Labor (USDOL) Secretary, Thomas Perez, issued an internal memorandum to staff members notifying them of several updated guidance documents which removed “references to DOMA and [affirmed] the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act.”  Specifically, the USDOL issued guidance that now defined “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 modification to the definition of “spouse” under the FMLA clarified that an employee in a same-sex marriage who was married and reside in a state that recognize same-sex marriages is entitled to take FMLA leave to care for the employee’s same-sex spouse who has a serious health condition, irrespective of whether the state where the employee works recognizes same-sex marriage.    


Employers in states that recognize same-sex marriage must provide FMLA benefits to those employees with a same-sex spouse.  Employers located in states that do not recognize same-sex marriage must also provide FMLA benefits to employees with a same-same sex spouse when they reside in a state that recognizes same-sex marriage.  While employers may elect to voluntarily extend FMLA benefits to employees who reside in states where same-sex marriage is not recognized, this extension may result in “double dipping,” i.e. employees seeking leave beyond the FMLA entitlement in the event of an actual FMLA-qualifying event.  Employers should carefully review and update their policies and procedures to reflect these recent changes and to minimize certain legal risks, including FMLA interference and sexual orientation discrimination claims.    

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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