We have been sitting on the edge of our seat [ok, perhaps I’m on the seat alone] as we await the Department of Labor’s anticipated regulations interpreting how the Supreme Court’s DOMA decision impacts the definition of “spouse” under the Family and Medical Leave Act.

As you may recall, I predicted earlier this year that the DOL likely would adopt a “state of celebration” rule, in which spousal status is determined based on the law of the State where the employee was married.  Although we don’t have anything definitive, the DOL shot us a sneak preview last week of what this proposed FMLA regulation might look like.

In Technical Release 2013-04 issued on September 18, 2013, the DOL takes the position that — at least with respect to employee benefit plans — the terms “spouse” and “marriage” in Title I of ERISA and its implementing regulations “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.”  This guidance comes on the heels of the IRS’ own guidance, which late last month confirmed its position that a same-sex couple is considered married (for federal tax purposes) so long as the couple was married in any state (or U.S. territory or foreign country) that recognizes same-sex marriage.

In a DOL press release announcing its new guidance, Secretary Thomas Perez stated that the Supreme Courts Windsor (DOMA) decision “represents a historic step toward equality for all American families, and I have directed the department’s agency heads to ensure that they are implementing the decision in a way that provides maximum protection for workers and their families.”

State of celebration rule?  It’s likely only a matter of time.

Let’s hear from you, DOL.  We await your guidance on our favorite federal law!

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