Home – Labor Department Guidance and a Patchwork of State Laws Expected in Wake of SCOTUS DOMA Ruling

Labor Department Guidance and a Patchwork of State Laws Expected in Wake of SCOTUS DOMA Ruling

Since the U.S. Supreme Court struck down the Defense of Marriage Act’s “one man/one woman” definition of marriage, many have been waiting for guidance from government relating to everything from employment and military benefits to immigration regulations. The definition is for states to decide, the high court decided. 


Some direction came on Aug. 13, 2013, from the Wage and Hour Division of the Department of Labor in the form of a two-page fact sheet. The Barran Liebman LLP law firm wrote―in a post in the Labor and Employment Law section of the LexisNexis Legal Newsroom―that while the fact sheet did 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,” the Barran Liebman post reads. It also point out the challenge a “legal patchwork” poses for neighboring states with conflicting laws.


Oregon, where same-sex marriage is prohibited, borders Washington, where it is legal. California, where same-sex marriage is legal, borders both Oregon and Nevada where it is not.  It is legal in Minnesota and Iowa, but not in Wisconsin, which both states border.  Illinois has broad domestic partner and civil union rules, but Indiana, like Wisconsin, has broad domestic partnership rules and an anti-gay amendment to its constitution. 


According to FreedomToMarry.org, more than 30% of the U.S. population lives in a state that either has the freedom to marry or honors out-of-state marriages of same-sex couples. More than 41% lives in a state with either marriage or a broad legal status such as civil union or domestic partnership and more than 43% lives in a state that provides some form of protections for gay couples.


According to the DOL Wage and Hour Division fact sheet, the FMLA says eligible employees of covered employers may, in a 12-month period, take up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave, for any of these reasons:


    1. The birth of a child and to bond with the newborn child within one year of birth.
    2. The placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement.
    3. A serious health condition that makes the employee unable to perform the functions of his or her job.
    4. To care for the employee’s spouse, son, daughter, or parent who has a serious health condition. An employee may be needed to provide care to the family member, the fact sheet reads, in these circumstances:
    1. When the family member is unable to care for his or her own medical, safety or other needs
    2. Because of the serious health condition or needs help in being transported to the doctor; or to provide psychological comfort and reassurance to the family member with a serious health condition
    3. Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty, e.g., military deployment of an employee’s spouse, son, daughter, or parent to a foreign country
    4. An eligible employee may also take up to 26 work weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (military caregiver leave)


Attorneys at the employment law firm of Fisher & Phillips noted a decision out of federal court in Pennsylvania, which came down on the heels of the Supreme Court’s DOMA decision. The District Court for the Eastern District held in a case involving a law firm―Cozen O’Connor v. Tobits―that the same-sex spouse of a deceased employee is entitled to receive death benefits under the employer’s ERISA-qualified plan.


The case involves a female Cozen O’Connor employee who married another woman in Canada, where same-sex marriage is legal. The employee died in 2010, and her spouse and family brought competing claims to the death benefits of the employee’s profit-sharing plan.  The plan stated that benefits would go to family if there was no spouse or beneficiary. Citing the Supreme Court’s decision, the District Court held that the employee did, in fact, have a spouse, and ordered that death benefits be paid to her. 


The Fisher & Phillips alert said that while this case only applies to the Eastern District of Pennsylvania, if adopted in other jurisdictions it could impact all employers who maintain ERISA-qualified plans. “This would be so even if the employer is headquartered in a state which does not recognize same-sex marriages. In fact,” according to the firm, “state law in Pennsylvania explicitly voids same-sex marriages that are validly entered into in other states or foreign jurisdictions.”


Employers can expect further implementation of the Supreme Court’s DOMA ruling by the Labor Department. Until that time, a Littler Mendelson article said, employers should consider taking the following steps:

    1. Employers with employees in states where same-sex marriages are recognized should review their FMLA policies and procedures to ensure they provide leave for an employee in a same-sex marriage to care for the employee’s spouse.
    2. Employers with employees in multiple states―some recognizing same-sex marriage and some not―may wish to consider permitting all same-sex married employees to take spousal leave to ensure equal treatment. 


“However,” the article said, “before implementing changes to leave policies, the employer should consult legal counsel to determine the impact of the possible changes. For example, if an employee is not legally entitled to use FMLA leave for a same-sex spouse due to the law of the employee’s state of residence, but the employer approves leave to care for the employee’s spouse, the approved leave will not count against the employee’s FMLA entitlement, and the employee will have the full 12 weeks of FMLA leave still available.”


Definitions of Key Terms


The Labor Department fact sheet also provides these FMLA definitions:


Spouse: 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.

Parent: A biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents “in law.”

Son or daughter: A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.

In Loco Parentis: Those with day-to-day responsibilities to care for or financially support a child. Employees who have no biological or legal relationship with a child may, nonetheless, stand in loco parentis to the child and be entitled to FMLA leave. Similarly, an employee may take leave to care for someone who, although having no legal or biological relationship to the employee when the employee was a child, stood in loco parentis to the employee when the employee was a child, even if they have no legal or biological relationship.

Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.