FMLA: After DOMA ruling, employee’s residence matters

If you’re an employer with operations in several states, some of which recognize same-sex marriage and some of which don’t, you may have wondered how the Supreme Court’s Defense of Marriage Act decision affects you. Now that attorneys have begun delving into the decision and the law, answers are emerging, particularly concerning the FMLA.

The Court’s decision in United States v. Windsor essentially said that, in states where same-sex marriage is legal, all federal laws that apply to married people generally must apply equally to same-sex spouses.

But the question remained: Which state’s law applies? The state where the employee works or the state where the employee lives?

Attorney Jean Schmidt of the Littler Mendelson law firm says it’s the latter. She uncovered the pertinent part of the Department of Labor’s FMLA regulations (29 C.F.R. § 825.102), which states: “Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides…”

Schmidt explains: “Accordingly, same-sex married couples who live in a state that recognizes same-sex marriages, or that gives validity to same-sex marriages legal in other states, will be considered married for FMLA purposes and will be entitled to FMLA leave to care for their spouse.”


Example: A female employee who lives in the District of Columbia is legally married to a woman. She works in Virginia, which does not recognize same-sex marriage. For purposes of the FMLA, she is entitled to take leave to care for her spouse.

Advice: If you encounter this situation, run it by your attorney before making a final FMLA leave decision.