Oct 8

The Department of Labor (“DOL”) wasted no time to amend its enforcement procedures for the Family Medical Leave Act (“FMLA”) in light of the United States Supreme Court’s recent ruling that struck down as unconstitutional the federal Defense of Marriage Act (“DOMA”).

The DOMA denied federal benefits to legally married, same-sex couples.  However, on June 26, 2013, the Supreme Court struck down those key provisions of DOMA, and lower courts have begun to issue rulings applying the decision in different areas of the law.  For example, a Pennsylvania court ruled that a Canadian same-sex marriage had to be recognized for purposes of a pre-retirement survivor annuity benefit.  In another case, an Ohio court ruled that a same-sex marriage that occurred outside Ohio had to be recognized for purposes of listing the “spouse” on a death certificate.

In addition to these two cases, the DOL has recently revised its FMLA fact sheet 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.”  There is a key distinction between the language used by the courts and the DOL.  Specifically, the courts determined who a spouse was based on where the marriage took place, while the DOL has made the definition of a spouse dependent on the state law of where the employee resides.  This distinction is important to Florida based employers because Florida does not recognize same-sex marriage.  Having said that, if the current wave of court rulings prevails, then it may not matter and Florida employers will have no choice but to treat same-sex spouses on equal footing with husband and wife spouses.

Employers would be wise to pay close attention to this issue, because it will likely lead to more litigation and an expansive interpretation of the Supreme Court’s DOMA ruling into areas such as private health care plans, insurance benefits, and other benefits of employment.