Many individuals in same-sex marriages will now be permitted to take an unpaid leave of absence to care for a sick or injured spouse without getting fired, thanks to the Supreme Court’s recent invalidation of the Defense of Marriage Act (DOMA), which had denied same-sex couples of the critical federal benefit.
The U.S. Department of Labor (DOL) confirmed on its blog that as a result of the Supreme Court’s decision in U.S. v. Windsor, lesbian, gay, bisexual and transgendered Americans will no longer be forced to choose between keeping their job and caring for a sick spouse. The new law, however, applies only to same-sex couples who were married and reside in one of the states with marriage equality laws.
In a brief memorandum, Labor Secretary Thomas Perez advised staff members that the DOL had revised a number of guidance documents “to remove references to DOMA and to affirm the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (FMLA).
For instance, the DOL’s Wage and Hour Division revised its Fact Sheet 28F, which defines the “Qualifying Reasons for Leave Under the Family and Medical Leave Act.” The document now defines “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.”
Secretary Perez advises in his memorandum that updating the DOL guidance documents “is one of many steps the Department will be taking over the coming months to implement the Supreme Court’s decision” and that he has directed the agency’s department heads “to look for every opportunity to ensure that [the Department is] implementing this decision in a way that provides the maximum protection for workers and their families.
The Human Rights Campaign, which advocates for marriage equality laws for all Americans, no matter where they live, said on its blog:
“This welcome guidance is only the first step. We urge the Department to take additional action to ensure that the every legally married same-sex couple’s marriage is recognized. Specifically, we encourage the adoption of a state of celebration standard that will look to the state where the couple married, rather than where they live, to determine eligibility for this benefit.”