The Secretary of the U.S. Department of Labor (“DOL”), Thomas E. Perez, sent an email on August 9, 2013 notifying his staff of a policy change that expands “spouse” coverage under the Family Medical Leave Act (“FMLA”) to a legally married same sex partner as a result of the Supreme Court’s decision in United States v. Windsor, 133 S.Ct. 2675 (2013).
In Windsor, the Supreme Court struck down portions of the federal Defense of Marriage Act (“DOMA”), thereby legitimizing the marriages of thousands of same-sex couples who had been legally married in one of the twelve states or Washington D.C., where same-sex marriage is permitted by law. In the aftermath of Windsor, individuals married in one of the legalized states or D.C. are considered to be married from a federal benefits perspective. However, because many federal laws depend upon the individual’s state of domicile, it has not been entirely clear what effect the case will have on individuals who were married in one of the legalized states, but reside in a state where same-sex marriage continues to be unrecognized.
In one of the first clarifying directives to come from the federal government describing the Windsor decision’s impact on specific federal laws, the recent email from DOL Secretary Perez states that, effective immediately, legally married same-sex partners are now considered to be “spouses” under the FMLA. This change means that qualifying individuals may take FMLA leave to care for a legally married same-sex partner who has a serious health condition, regardless of whether the state in which that couple lives recognizes same-sex marriage. This expansion also applies to the spouse provisions of the Qualified Exigency Leave and Military Caregiver Leave sections of the FMLA. Significantly, however, same-sex partners who are not legally married continue to be unprotected by the FMLA.
Given the DOL’s directive, Employers should consider revising their FMLA policies to treat a legally married same-sex partner as a spouse.”
 As of the date of this writing, same-sex marriage is recognized in California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington D.C.