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Labor and Employment Law

DOL Guidance Clarifies FMLA Rights for Same-Sex Couples

 It has been nearly two months since the U.S. Supreme Court nullified Section 3 of the Defense of Marriage Act ("DOMA"). Yet, the Administration has been largely silent on its interpretation of how the Supreme Court's decision affects the 1,100 plus federal laws that use the term "spouse."

The Department of Labor broke this silence on August 13, 2013, when it posted a revised fact sheet: Fact Sheet #28F: Qualifying Reasons for Leave under the Family Medical Leave Act. While Fact Sheet #28F does not contain any surprises, it does make official that the Family Medical Leave Act's ("FMLA") definition of "spouse" now includes same-sex spouses where an individual resides in a state that recognizes same-sex marriage.

This notice serves as a good reminder that employers administering FMLA leave must now be paying attention to an employee's state of residence in processing leave requests. Same-sex marriage is prohibited constitutionally in Oregon, but it is legal in Washington. This legal patchwork poses a challenge for Oregon employers with employees who reside in Washington (or other states which allow same-sex marriage). Similarly, Washington employers with employees who live in Oregon (or other states which do not have same-sex marriage) need to be extra cautious when administering family leave under federal law. Here is how some specific scenarios will play out:

Oregon Employers with Employees Residing in Washington

Oregon employers should give employees who reside in Washington (or any other state that recognizes same-sex marriage) the opportunity to communicate their marital status to human resources. Where an employee has a same-sex spouse and resides in Washington, the employee's same-sex spouse must be treated identically to any other spouse for purposes of FMLA (and all other federal benefits).

The Oregon Family Leave Act ("OFLA") only extends benefits to those same-sex domestic partners who have received a Certificate of Registered Domestic Partnership from the State of Oregon, so employees living out of state are not likely to qualify for leave under OFLA to care for their same-sex spouse. However, to the extent an employee qualifies for domestic-partnership leave under OFLA and spousal leave under FMLA, those leaves will run concurrently.

Washington Employers with Employees Residing in Oregon

Because marital status is determined by an employee's state of residence, an employee working in Washington but residing in Oregon does not have a federally-recognized same-sex marriage under current law. This means that regardless of the state in which the employee was married, an employee residing in Oregon is not eligible for FMLA leave to care for a same-sex spouse.

Washington Employers with Employees Residing in Washington

Like Oregon employers with Washington employees, Washington employers with Washington employees must treat same-sex married couples identically to all other married couples for purposes of federal and state law. The tricky piece about administration leave in this situation is coordinating state and federal leave. The Washington State Family Leave Act ("WSFLA") allows state-registered domestic partners to take leave to care for a domestic partner. Thus, employees in a registered-domestic partnership have historically taken leave to care for a domestic partner under WSFLA but had no FMLA leave entitlement. Washington employees who are part of a registered domestic partnership may still take leave under the domestic partner provision of WSFLA to care for a domestic partner. However, employees who choose to marry a same-sex partner will cease taking leave under the domestic partnership provisions of WSFLA and will instead take leave to care for a spouse under both WSFLA and FMLA. Leave under WSFLA and FMLA will run concurrently.

All of this could change in the event President Obama issues an Executive Order or the IRS releases guidance that redefines which state law is used to determine whether a same-sex marriage is valid. For example, if the state of celebration, that is, the state in which the couple was married, is used, rather than the state of residence, a couple validly married in Washington or California will be validly married even if they reside in Oregon or another state with a same-sex marriage ban.

Stay tuned!

Read more alerts by Barran Liebman attorneys.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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