Did you know that the Supreme Court’s decision in U.S. v. Windsor, commonly known as the DOMA Decision, which struck down section 3 of the Defense of Marriage Act (“DOMA”), impacts who may be eligible for FMLA leave?  It does!  Indeed, the Department of Labor recently amended FMLA Fact Sheet 28F to change the definition of spouse in response to the Windsor decision.  Although the news media is not focusing on this aspect of the Windsor decision, you should be.

DOMA is a federal statute, signed into law by President Clinton in 1996.  DOMA contained 2 sections, neither of which prohibited states from recognizing same sex marriage.  Rather, section 2 provides that states are not required to recognize same sex marriages performed in other states.  This section remains good law and was not challenged in Windsor.  Section 3, which was at issue in Windsor, amended the definition of marriage and spouse in nearly 1000 Federal laws, including the FMLA.  Pursuant to DOMA, marriage was defined as between one man and one woman and spouse was defined as a member of the opposite sex for purposes of Federal law.

In the Windsor decision, the Supreme Court invalidated only Section 3 of DOMA.  The Court reasoned that “marriage is traditionally within the realm of authority of the states,” and that the Federal Government should not interfere with a state’s sovereign right to decide who can and cannot be married.  The impact of the Windsor decision can be summarized as follows: where a state permits and recognizes as valid, a marriage between same sex partners, the federal government must also recognize such marriage.  State laws regarding marriage were not affected by the Windsor decision.

Effect on FMLA

The Family and Medical Leave Act, enacted in 1993, is a Federal statute that provides job protected leave for an employee to care for a family member with a serious health condition.  Included in the definition of family member is spouse.  Spouse is defined 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.”  When DOMA was signed into law, as noted above, Section 3 had the effect of amending or overruling the definition of spouse in hundreds of Federal laws, including the FMLA.  Indeed, the Department of Labor confirmed that DOMA preempted the statutory definition of spouse under the FMLA, by indicating in FMLA Fact Sheet 28F that “FMLA leave may only be taken to care for a spouse of the opposite sex.”

After the Supreme Court decided Windsor and struck down Section 3 of DOMA, legal analysts surmised that the DOL would reverse its position and revert to the definition of spouse found in the FMLA statute.  The analysts were right.  Just recently, the DOL amended the definition of spouse in FMLA Fact Sheet 28F.  The new Fact Sheet states that “spouse means a husband or wife as defined or recognized under state law for purposes of the state where the employee resides, including “common law” marriage and same-sex marriage.”

What this means for Employers

This means that if an employee is lawfully married to a same sex spouse and residing in a state that recognizes same sex marriage, that employee would be entitled to FMLA leave to care for his/her same sex spouse with a serious medical condition.

If you are a Pennsylvania employer with employees that reside exclusively in Pennsylvania, the above-referenced changes do not affect you.  This is because Pennsylvania does not recognize same sex marriages as legal marriages.  Indeed, pursuant to section 1102 of the Pennsylvania Domestic Relations Act, marriage is defined as “a civil contract by which one man and one woman take each other for husband and wife.”  23 Pa. C.S.A. §1102.  Further, Pennsylvania does not recognize as valid same sex marriages performed in other states.  Thus, for a Pennsylvania employer with employees that reside exclusively in Pennsylvania, only opposite sex couples will be eligible to take FMLA leave to care for a sick spouse.

If, however, you are a multi-state company or a border company with some of your employees residing in Pennsylvania and some of your employees residing in Delaware or Maryland or New York, which all recognize or have legalized same sex marriage, you could have a disparity in the implementation of FMLA leave.  Employees residing in Delaware, Maryland or New York would be eligible to take FMLA leave to care for a same sex spouse.  However, an employee residing in Pennsylvania – even if that employee had traveled to another state to get married – would not be eligible to take FMLA leave to care for his/her same sex partner.

Some multi-state and border companies have decided to eradicate the possibility of unequal implementation and simply decided to offer FMLA leave to all employees, who may need to care for a same sex partner, regardless of the employee’s state of residence.  Employers may do this if they wish, but the law certainly does not require it.

Other Impacts

Several federal laws governing benefits have also been affected by the DOMA decision.  For example, depending on the definitions in plan documents, same sex spouses may now qualify for health care benefits and continuing family coverage under COBRA.  Flexible Spending Accounts may now cover medical expenses incurred by a participant’s same sex spouse.  Same sex partners may now qualify as spousal beneficiaries under defined benefit plans, 401k plans and the like.  Employers should carefully review their plan documents and the definitions in such documents to determine if coverage and beneficiaries have been expanded.

We hope you find this issue of KKAL’s Labor and Employment Law Watch helpful and informative.  Please understand that the Law Watch is designed to provide information about current developments and required actions. If you have any questions regarding any labor and employment law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717-392-1100, or email us at the following addresses:



Labor & Employment Practice Group

(717) 392-1100

Denise E. Elliott, Chair                          elliott@kkallaw.com

Amy G. Macinanti                           macinanti@kkallaw.com

Jeffrey D. Litts                                         litts@kkallaw.com

Paul D. Clouser                                  clouser@kkallaw.com

Howard L. Kelin                                     kelin@kkallaw.com

Judith A. Griffith                                  griffith@kkallaw.com

© 2013 Kegel Kelin Almy & Lord LLP.  All Right Reserved.

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