Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor [an enhanced version of this opinion is available to lexis.com subscribers], there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws. Windsor held that DOMA’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. Because this decision is limited to one provision of one federal statute, many have wondered how it will be applied to private insurance plans, and to other federal statutes, such as the FMLA. Last month, we started to get an answer. The Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. As best as I can tell, the DOL amended the Fact Sheet to make one material change — to add “same-sex” marriage to the definition of spouse. Thus, according to the DOL’s definition of “spouse,” an otherwise eligible employee of a covered employer is now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition. It is important to note that this Fact Sheet is not the law. It is not part of the text of the FMLA, or even part of the DOL’s regulatory interpretation. It is merely the agency’s informational interpretation of the statute in light of Windsor. Because courts do not have to accept this Fact Sheet as gospel on the meaning of “spouse” under the FMLA, neither should employers. It is an important first step, however, in the evolution of this issue and the development of same-sex leave rights under the FMLA. While this issue develops in the DOL and the courts, employers need to remember that the FMLA is a floor, not a ceiling. Employers are free to provide leave of absence rights greater than the baseline the FMLA requires. Thus, employers that want to extend leave of absence rights, and other rights (such as benefits or employment-discrimination protections), to same-sex couples, need not wait for a legislative blessing. They were free to do so before the Windsor decision, and remain free to do so now. This Fact Sheet, however, signals that we are thankfully moving down a path to where someday, thankfully, this issue will no longer be open to debate or discussion.
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