In the wake of the U.S. Supreme Court's historic Windsor decision, last week the Secretary of Labor directed his department to begin recognizing same-sex spouses as eligible for Family and Medical Leave. Windsor declared the federal Defense of Marriage Act unconstitutional. DOMA was the original reason given by DOL when it defined spouses under the FMLA to exclude same-sex couples.

DOL will likely issue proposed regulations containing this definitional change. The agency has expressed its intent to provide maximum protections to same-sex married couples with regard to leaves, benefits and other employment areas under its jurisdiction. The main issue of contention for DOL will be extension of FMLA rights to same-sex spouses in states that do not recognize gay marriage. The current FMLA definition applies to marriages recognized in the employee's place of domicile and not the state in which the marriage occurred.

Therefore, the internal DOL guidance will initially apply only to the 13 states and District of Columbia that recognize gay marriage. If DOL follows through on its intent to provide maximum protections, it could propose changes to the FMLA that would extend rights to same-sex couples living outside the jurisdiction where they were married. This change would need to consider other issues, such as states that do and do not recognize common law marriages.

Many employers voluntarily extend FMLA protections to same-sex spouses. Those that have not taken this step and that have operations in states that recognize gay marriage should begin the process of reviewing and revising their FMLA policies in anticipation of this change.