The Supreme Court's Defense of Marriage Act ("DOMA") ruling will impact the "spouse" definition in the Family and Medical Leave Act ("FMLA") (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.
It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do "in the meantime?"
Below is some guidance:
- Employers should proceed with some caution (a blast of the obvious).
- If faced with an employee who requests leave for an ailing same-sex spouse, and the couple lives and works in a state that recognizes the same-sex union, the employer can (and should) grant the leave and count it as FMLA; not doing so likely will invite an interference claim;
- If faced with an employee who requests leave for an ailing same-sex spouse, and the couple lives and works in a state that does not recognize the same-sex marriage BUT,