The Department of Labor has clarified its Family Medical and Leave Act (FMLA) rules in light of the decision in Windsor giving spousal rights to same-sex marriage. The DOL revised guidance to confirm that an employee may be eligible for FMLA leave to care for a same-sex spouse or for activities related to a same-sex spouse’s military service. The guidance, in the form of an updated Q&A on its website, defines “spouse” for FMLA purposes as a husband or wife as defined or recognized under state law for the purpose of marriage in the state in which the employee resides (including same-sex marriage).
Since the FMLA rules reference state law for defining marriage, FMLA leave for an employee in a same-sex relationship only has to be offered if the employee is married to the same-sex spouse and the employee resides in a state that recognizes same-sex marriage.