But what about employees who live in a state that does not recognize same-sex marriage? 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. 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. 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. My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a "significant liberty interest" under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.
Here, employers clearly need some help from the DOL. Might the DOL draft regulations on how employers administer the FMLA in situations where the employee's spouse is not recognized under state law? 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. Nevertheless, the employer community looks forward to helping shape these rules.
Full text: FMLA Insights.
