The Department of Labor's recent Administrative Interpretation regarding FMLA leave for those acting in loco parentis to a child placed the spotlight on the application of FMLA leave to same-sex couples with children. However, the ruling did not address how the FMLA applies to situations where an employee seeks FMLA leave to provide care not for a child, but for a same-sex partner or spouse. However, two recent ruling by a federal court in Massachusetts may redefine the term "spouse" for purposes of FMLA leave, at least in states that recognize same-sex marriages. 

The Ruling

Last week, federal judge Joseph L. Tauro issued two blockbuster rulings, striking down the federal Defense of Marriage Act (DOMA) as a violation of the equal protection rights of same-sex couples married under state law. Gill v. OPM (.pdf) and Commonwealth of Mass. v. HHS (pdf). DOMA provides that for purposes of federal law, "marriage" is limited to opposite-sex unions: 

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

As noted in the Gill opinion, DOMA's definitions of "marriage" and "spouse" is incorporated into "at least 1,138 different federal laws," including the Family and Medical Leave Act. Gill focused on DOMA as applied to the FMLA rights of federal employees because the plaintiffs in Gill worked for the federal government, but did not discuss how striking down DOMA would affect the FMLA rights of private-sector employees. 

A preliminary review of the FMLA regulations might seem to suggest that the Department of Labor already defines "spouse" in terms of applicable state law rather than the definition set forth in DOMA. Specifically, 29 C.F.R. § 825.122(a) provides:

Spouse. Spouse means 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 in States where it is recognized.

However, in a 1998 opinion letter interpreting this language, the Department made it clear that DOMA's definition of "spouse" limits FMLA rights to opposite-sex spouses. If DOMA no longer applies, then it appears that the definition of "spouse" under the FMLA would be determined by the law of the state in which the employee resides. In Massachusetts and several other states, that would include same-sex spouses.

Insights for Employers

Here is what employers should take away from this ruling with respect to the FMLA:

• The Massachusetts ruling does not affect the rights of same-sex couples who reside in states that do not recognize same-sex marriage.
• The FMLA does not allow employees to take leave to care for a partner of either sex absent a legally-recognized marriage. 
• In states that do recognize same-sex marriage, employees may now be able to argue that they are entitled to FMLA leave to care for their same-sex spouses. 
• However, it remains to be seen whether the rulings will be upheld on appeal and followed by other circuits. Employers in affected states should stay tuned.