The Supreme Court’s decision in U.S. v. Windsor adds to employer obligations under the FMLA by expanding the group of individuals who may be a “spouse” for FMLA purposes. At issue in Windsor was whether Section 3 of DOMA violated the Fifth Amendment’s Equal Protection Clause as applied to the Federal Government. Section 3 of DOMA states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife.” Section 3 of DOMA had left no doubt that the definition of “spouse” under the FMLA could not possibly have included a same-sex spouse. Now that the Supreme Court has found Section 3 to be unconstitutional, that prohibition went with it and employers must now determine whether an employee’s same-sex spouse is a “spouse” for FMLA purposes.
For additional information on making that determination, click here.