Of course, this kind of stuff happens while I’m on vacation and away from my computer. Last week, the Wall Street Journal created a bit of an uproar when it reported that the Department of Labor had just issued “regulatory guidance to affirm that same-sex married couples can take a leave from their jobs to care for an ill spouse.” This comes as a result of the Supreme Court’s Windsor decision, which I previously highlighted here.
What was the DOL’s regulatory guidance, you ask? As Dan Schwartz reports in his employment law blog, the DOL simply updated its FMLA Fact Sheets to reflect that the definition of “spouse” under the FMLA also includes those individuals who have entered into a same-sex marriage. Here’s the specific provision from the new Fact Sheet:
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 and same-sex marriage. [My emphasis, not DOL’s.]
This update is hardly surprising. In fact, one might have expected it. On the other hand, the Fact Sheet did not address the definition of “spouse” for those employees in a same-sex marriage who reside in states that do not recognize same-sex marriage. That’s what we really want to know, right? As I discussed in my previous post, this issue will require some actual regulatory guidance instead of a fairly straighforward change on a Fact Sheet.
Interestingly, in other housekeeping news, the DOL also has indicated that a 1998 opinion letter regarding DOMA’s application to the FMLA is under review in light of the Windsor decision.
Even the DOL thinks these tweaks are a bit of a yawner since they must have been anticipated. Take a look at their own blog entry here that it posted late last week.
Insights for Employers
Although the Fact Sheet update is hardly earth-shattering news, this tweak by the DOL serves as a reminder to employers that they need to carefully consider what changes they should make now to FMLA policies, forms and procedures to remain compliant with DOL’s updated interpretation of the definition of spouse.
In particular, if you have employees who reside in states where same-sex marriage is legal, (based on my count, that’s California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia), you should work with your employment counsel promptly to make these changes.
Now back to that nap…