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By Brad Cave New Labor Secretary, Tom Perez, indicated that the Department of Labor (DOL) has updated departmental guidance regarding spousal leave provisions of the Family and Medical Leave Act (FMLA) to reflect the Supreme Court’s recent decision that struck down certain provisions of the Defense of Marriage Act (DOMA).

As the DOL updates its policies, employers too need to examine and update their FMLA policies. Unconstitutionality of DOMA Means FMLA Spousal Leave Applies to Legally Married Same-Sex Couples The Supreme Court’s decision in focused on Section 3 of DOMA which defined “spouse” as a husband or wife of the opposite sex for purposes of federal laws or regulations.

More specifically, an employer must determine if same-sex marriages are lawful in the state where the employee requesting FMLA leave lives, not where the employer is located or where the employee actually works.

Employers with employees living in states that recognize same-sex marriages should ensure compliance with federal law by updating their FMLA policy, forms and practices to provide for spousal leave benefits for recognized same-sex marriages.

According to the DOL’s 2009 FMLA regulations, “spouse” means a husband or wife as recognized by the state where the employee resides.

Employers can expect more guidance from the DOL on this issue as well as increased scrutiny on leave policies.

Mc Donald Hopkins will continue to monitor developments in this area.

In a landmark decision, the Court in struck down Section 3 of DOMA, which limited the definition of marriage to “a legal union between one man and one woman,” as it violated due process and equal protection principles embodied in the Fifth Amendment.

The provisions of Section 3 restricted the definition of marriage and spouse to heterosexual marriages for all federal laws, and, because of that definition, legally married same-sex couples were not entitled to federal benefits or rights.

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