Legal Briefing: FMLA Updated for Same-Sex Marriage Laws


Oct. 16, 2013

The U.S. Labor Department recently updated its Family and Medical Leave Act policies following the U.S. Supreme Court’s ruling in United States v. Windsor that the Defense of Marriage Act denying benefits to legally married, same-sex couples is unconstitutional.

The Labor Department’s update advises that spousal leave based on same-sex marriage is available under the FMLA. Specifically, the Labor Department’s Wage and Hour Division updated its fact sheet #28F to define “spouse” as “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.” Such individuals, residing in states allowing same-sex marriage, are entitled to FMLA leave to care for the employee’s same-sex spouse who has a serious health condition. “U.S. Department of Labor Wage and Hour Division Fact Sheet #28F” is available at

Impact: Employers should promptly review and, if necessary, revise their FMLA policies, procedures and forms to reflect the Labor Department’s updated guidelines. Employers should also consider whether to extend FMLA-equivalent spousal leave benefits to employees in same-sex marriages who reside in states that do not allow same-sex marriage.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email Follow Workforce on Twitter at @workforcenews.

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