FMLA Protection Extends to Gay Spouses As DOL Updates Policies Following Windsor

Bloomberg Law for HR Professionals is a complete, one-stop resource, continuously updated, providing HR professionals with fast answers to a wide range of domestic and international human resources...

By Gayle Cinquegrani  


The spousal leave provisions of the Family and Medical Leave Act apply to married gay couples, Labor Secretary Tom Perez announced Aug. 9 in an email to DOL employees.

DOL has updated departmental guidance on FMLA in the wake of “the [U.S.] Supreme Court's recent decision in United States v. Windsor, which struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples,” Perez said.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, including to care for a spouse who has a serious health condition.

DOMA, however, prohibited the federal government from recognizing same-sex marriages, so DOL did not require employers to grant married gay people FMLA leave to care for their spouses. On June 26, the Supreme Court ruled that Section 3 of DOMA, which excludes state-sanctioned, same-sex marriages from the federal definition of marriage, is unconstitutional (United States v. Windsor, U.S., No. 12-307; 64 BTM 209, 7/2/13).

Same-sex marriage is recognized in 13 states and the District of Columbia.

DOL has removed references to DOMA from several guidance documents and affirmed the availability of spousal leave based on same-sex marriages under FMLA, Perez said. “This is one of many steps the Department will be taking over the coming months to implement the Supreme Court's decision,” according to Perez.

Implementing the Ruling

DOL agency heads will “look for every opportunity to ensure that we are implementing this decision in a way that provides the maximum protection for workers and their families,” Perez said. “As the President directed, the Department of Labor has begun to coordinate with other federal agencies, including the Department of Justice, to implement this ruling as swiftly and smoothly as possible,” he added.

The Office of Personnel Management announced June 28 that under Windsor, same-sex spouses of federal employees and annuitants are eligible for coverage under the federal government's benefits programs.

Perez encouraged DOL employees to “take advantage of any new benefits that may be available for your families.” He said, “By extending unemployment compensation, health insurance and other important benefits to federal employees and their families, regardless of whether they are in same-sex or opposite-sex marriages, the Obama Administration is making real the promise of this important decision.”


Text of Perez's email is available at

Request Bloomberg Law for HR Professionals