Last month, the U.S. Department of Labor (“DOL”) updated their fact sheet #28F on Qualifying Reasons for Leave under the Family and Medical Leave Act (“FMLA”) to provide guidance on protections for same-sex spouses. The guidance follows the Supreme Court’s recent United States v. Windsor decision. In Windsor, the Court struck down Section 3 of the Defense of Marriage Act and fundamentally changed how the federal government treats same-sex marriages.
Under the revised DOL fact sheet, a “spouse” includes a same-gender spouse if the marriage is recognized under the laws of the state in which the employee resides. This definition fits with the FMLA regulations which define “spouse” based on the legal definition of marriage in the state of the employee’s residence. In particular, this fact sheet affirms that same-sex married couples who are eligible employees can take leave from their jobs for up to 12 weeks in a 12-month period to care for an ill spouse or for activities that arise in connection with a military spouse’s deployment, and up to 26 weeks of caregiver leave for a military spouse who is seriously injured or ill.
The DOL also has an official blog that discusses this change.