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On August 9, Secretary of Labor Thomas Perez issued an internal memo calling for the implementation of the Supreme Court’s landmark decision in United States v. Windsor.  In that case, the Court held that section three of the Defense of Marriage Act (“DOMA”), which limited the definition of marriage to “a legal union between one man and one woman,” violated due process and equal protection principles embodied in the Fifth Amendment.  The internal memo stated that the Department of Labor (“DOL”) will be removing references to DOMA from its correspondence, and will be working to ensure the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (“FMLA”).

The FMLA, which in part requires that covered employers allow their employees up to 12 weeks of unpaid leave to care for a spouse, formerly limited the term “spouse” to members of the opposite sex.  As part of its effort to implement the Windsor ruling, the DOL updated the definition of “spouse” in Fact Sheet #28F to include “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.” The DOL is also reviewing a 1998 Opinion Letter in which it applied DOMA’s definition of marriage to the FMLA in light of the Supreme Court’s decision in Windsor.

The Windsor decision only affects gay and lesbian couples who are legally married under the laws of their state, and does not require states to sanction same-sex marriage.  In addition, the DOL’s new definition of spouse ties a same-sex couple’s eligibility for FMLA benefits to the state in which the couple resides.  Employers can expect more guidance from the DOL on this issue as well as increased scrutiny on leave policies.  Employers should ensure that their policies comply with federal law and should be aware of potential changes that need to be made.