By Megan G. Holstein, Senior Counsel, Compliance and Employment Law, and Martha J. Cardi, Chief Compliance Officer

The United States Supreme Court issued 2 key decisions this morning concerning same-sex marriages: United States v. Windsor, concerning the Defense of Marriage Act (DOMA) and Hollingsworth v. Perry, concerning California’s Proposition 8 (ban on same-sex marriage).  These decisions impact leave of absence administration as it relates to covered relationships under the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) and are effective immediately.

United States v. Windsor, the DOMA case: DOMA defines “marriage,” for purposes of federal laws and programs including the FMLA, as a union between a man and a woman only. Today the Court ruled that DOMA is unconstitutional because it denies equal protection to same-sex married couples. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

The effect of the Supreme Court’s decision on leave administration: Under the FMLA, a spouse is defined as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works). 29 U.S.C. § 2611(13); 29 C.F.R. § 825.102; 29 C.F.R. § 825.122(b).  As a result of the DOMA ruling, effective immediately, an employee can now take FMLA leave to care for a same-sex or opposite sex spouse with a serious health condition, for military caregiver leave, or take qualifying exigency leave for a military spouse.

The following states (and D.C.)  currently recognize same-sex marriages:

  • California
  • Connecticut
  • Delaware
  • District of Columbia
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota (effective August 1, 2013)
  • New Hampshire
  • New York
  • Rhode Island
  • Vermont
  • Washington

The Supreme Court’s ruling does not have any impact on couples in a recognized domestic partnership or civil union, leaving many same-sex couples still without FMLA leave rights for a partner.

Hollingsworth v. Perry, the California Proposition 8 case:  Previously, same-sex marriages were permitted in California until the voters passed Proposition 8, a California constitutional amendment that, like DOMA, limited marriages to those between one man and one woman.  Prop 8 was declared unconstitutional by a California federal court in a lawsuit filed by two same-sex couples. The California government officials who would normally have defended the law in court declined to do so. Today the Supreme Court held that the proponents of Proposition 8 do not have the legal right (“standing”) to defend the law in court and sent the case back to the lower court with instructions for it to dismiss the appeal.

The effect of the Supreme Court’s decision on leave administration: As a result of the Supreme Court’s ruling, Proposition 8 remains stricken by the lower court’s decision and California will likely resume issuing marriage licenses to same-sex couples. If an employee has a valid marriage license to his or her same-sex spouse, then CFRA will cover that employee’s relationship.

Reed Group is Ready!

Reed Group is communicating these Court decisions to its staff so that we can immediately handle employees’ leave requests for their same-sex spouses.  We have begun training so that Reed Group employees are aware of what states recognize same-sex marriages. We are reviewing our signature LeavePro™ leave management software to determine if any updates are necessary. Reed Group will also update its FMLA chapter in the Leave Advisor™ to indicate that same-sex marriages should be recognized under the FMLA.


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