Unless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal unionÂ onlyÂ between one man and one woman.
Yesterday, as Justice Anthony Kennedy read the opinion of the Court inÂ U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act.Â Right?
But let’s not leave this to chance. Â In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:
How FMLA is Impacted after the Fall of DOMA
As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition. Â “Family member” includes the employee’s spouse which, under the FMLA regulations, 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, including common law marriage in States where it is recognized. Â 29 C.F.R. 825.102
Initially, this seems to suggest that the DOL would look to state law to define “spouse.” Â Not so fast. According to a 1998Â Department of LaborÂ opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that â€śspouseâ€ť could only be a person of the opposite sex who is a husband or wife. Â Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes. Â As result, FMLA leave has not been made available to same-sex spouses.
That changed yesterday, at least in part.
What’s Clear about FMLA After the Court’s Ruling
In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.” Â Thus, if an employee is married to a same-sex partnerÂ andÂ also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.
What’s Unclear about FMLA After the Court’s Ruling
But what about employees who live in a state that does not recognize same-sex marriage? Â Are they entitled to FMLA leave to care for their spouse?
As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA. Â Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage. Â This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).
Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled. Â My friend and Indiana University Maurer School of Law professorÂ Steve SandersÂ writes aÂ compelling articleÂ forÂ SCOTUSblogÂ contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendmentâ€™s Due Process Clause as to the ongoing existence of the marriage.
Here, employers clearly need some help from the DOL. Â Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law? Â If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.
Without more guidance, it still is too early to tell where this question is heading. Â Nevertheless, the employer community looks forward to helping shape these rules.
Other Key Benefits Affected by the DOMA Decision
FMLA is not the only federal law impacted by the fall of DOMA. Â If federal regulations follow through, some of the notable federal laws and benefits impacted may include:
- Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do. Â For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
- Affordable Care Act and COBRA:Â NPR reportsÂ that the Court’s decision will impact how the Affordable Care Act (affectionatelyÂ referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
- Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
- Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
- Citizenship: Â According to NBC News, someÂ 28,000 same-sex spousesÂ who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.
For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free toÂ follow me on TwitterÂ orÂ Linkedin. Â I’ll be posting more there. Â You also can subscribe to thisÂ FMLAÂ Insights blog on the right hand side of this page. Â Just enter your address and I’ll email you my updates directly.
This article was originally printed on FMLA Insights on June 27, 2013.Â Reprinted with permission.
About the Author:Â Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.