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DOMA and the FMLA

by Kelly A. Hayden, JD, Director, Employment Law Services/General Counsel

Published August 20, 2013

On August 9, 2013, the United States Department of Labor (DOL) Secretary Thomas Perez issued an internal memorandum advising staff that guidance documents with respect to the Family and Medical Leave Act (FMLA) would be updated to reflect the Supreme Court’s decision in United States v. Windsor, striking down provisions of the Defense of Marriage Act (DOMA) that deny federal benefits to same sex couples.

Therefore, instead of requiring that a husband or wife be a person of the opposite sex, FMLA guidance documents will be updated 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." (Emphasis Supplied).

For Illinois employers, this means that employees who are in a formally recognized civil union (a relationship that Illinois has recognized since June of 2011) and who reside in Illinois will be eligible for family medical leave, provided they meet the Act’s other eligibility requirements. A civil union may be recognized between same sex and opposite sex couples. Other states that recognize civil unions include Colorado, Delaware, Hawaii and New Jersey. Illinois does not recognize common law marriage.

It is, therefore, important to know the law concerning marriage and relationships in the state where the employee resides who is requesting the leave. Further, if this ruling will result in unequal treatment of employees based on differing state laws (for example, Indiana does not recognize civil unions), employers may want to consider the implementation of a general leave of absence policy that would allow those employees not covered by the FMLA to request and potentially receive leave under that policy.

The Management Association will be sponsoring a briefing on how the DOMA decision affects employee benefits overall.  Watch for information on this briefing, which will be held in October or early November. 

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