FMLA, DOMA AND SAME SEX SPOUSES

Now that the Supreme Court overturned the Defense of Marriage Act there seems to be a lot of chatter about what that means for same sex spouses seeking FMLA benefits. As of today, if a federal employee asks this question, “May I take FMLA to care for the medical needs of my same-sex domestic partner?” OPM will respond with the following: “Because the individuals for whom an employee can provide care under the Family and Medical Leave Act (FMLA) are specified in statute, an employee may take FMLA leave only to care for spouses, sons and daughters under 18 or over 18 but incapable of self-care because of a mental or physical disability, and parents. The DOMA definition of spouse precludes the extension of FMLA leave benefits to opposite-sex partners.”  But, . . .

lots of private attorneys are saying that is all changed by the Court’s DOMA ruling.  The common thinking seems to be that because the Court has effectively said that same-sex spouses are spouses under federal law if they are spouses under state law, the application of laws and regulations like FMLA to same sex spouse requests will depend on whether the state in which the employee works recognizes same-sex marriages.  For example,  it appears that a federal employee can take FMLA leave,  including military-family leave, for the serious medical condition of a same-sex spouse if the employee lives in a state that allows same-sex marriage.  As of today, those states are as follows: District of Columbia and California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont and Washington.

But feds should take all of this with a grain of salt for now because OPM has not yet officially changed its answer to the question.  There are also some questions to be answered, such as, if state law controls is it the law of the state in which the employee works, lives, or was married.  If a situation arises, check with an attorney because nothing we ever write should be considered legal advice.