HR Management & Compliance

Does the DOMA Ruling Affect FMLA Rights for Same-Sex Couples?

When the Supreme Court ruled that Section 3 of DOMA is unconstitutional, it opened up the possibility for married same-sex couples to be extended federal benefits on many levels, including things like FMLA leave. While the details have yet to be sorted, employers are gearing up for the many changes that will surely result.

In the DOMA case, United States vs. Windsor, the constitutionality of Section 3 of DOMA was challenged because Windsor asserted that the IRS violated her 5th amendment rights of equal protection when it applied Section 3 of DOMA.

“The court agreed with Windsor in a 5-4 vote, and essentially said that where the state has given same-sex couples the right to marry – which the court described as a dignity and status of immense import – that the federal government couldn’t go in and take away the right that the state had given the same-sex couple. Essentially, they couldn’t injure the same couples that the state sought to protect. So, for the purpose of federal law, the definition restricting spouses to those of the opposite sex was struck down.” Kate DeForest explained in a recent BLR webinar.

The ruling applies to all federal law, not just the tax law that was in question in the Windsor case. The court cited that there are over 1,100 federal statutes that involve the definition of spouse—so this decision is pervasive and far-reaching.

Will Married Same-Sex Couples Get FMLA Rights?

So, how does this affect employers? It does in many ways since now “spouse” will be legally recognized for anyone who is legally married. While federal agencies still need to give further guidance because there are many unresolved issues, there are some items that can be reasonably assumed will change. The FMLA is one such instance.

The FMLA allows eligible employees to take job-protected, unpaid leave for up to a total of 12 workweeks in any 12-month period for various family and medical reasons, including taking care of a spouse or dependent child. Spouse was defined by FMLA as a husband or wife as defined or recognized under state law for the purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.

Before the Windsor ruling, a Department of Labor Wage and Hour Opinion Letter said that employers were not required to grant leave to care for an unmarried domestic partner. Additionally, DOMA previously controlled the definition of “marriage” across federal law, so same-sex spouses were not recognized.

After Windsor, the FMLA definition remains unchanged, but the DOMA definition of spouse will no longer be inserted. This means that the “spouse” qualification will be dependent upon where the employee resides.

“If a state allows same-sex marriage, then employers in that state would be required to provide Family and Medical Leave Act benefits to same-sex spouses if they resided in a state that allowed same-sex marriage. And this would be regardless of where the employee worked.” DeForest explained.

What Happens Now?

At the moment, we are eagerly awaiting guidance on how this ruling will affect all related statutes. There are many unanswered questions, especially around the details of which same-sex couples will be legally recognized and which will not. For example, will it be dependent upon living in a state that currently recognizes same-sex marriage, or only having been legally married in one (regardless of where the couple now lives)?

Will employers who operate in multiple states have to give all employees equal treatment regardless of what state they’re in? Will the employer’s home state or the employee’s home state take precedence? These and many more unanswered questions await.

For more information on how the DOMA ruling affects FMLA benefits for married same-sex couples, order the webinar recording of “Employee Benefits: How the Supreme Court’s DOMA Ruling Will Impact FMLA Obligations, Healthcare Coverage, and More.” To register for a future webinar, visit

Kate DeForest is an attorney with Sulloway & Hollis, PLLC, in New Hampshire, where her practice focuses on labor and employment, business litigation, and health-care issues. Ms. DeForest has written on the constitutional challenge to DOMA for