FMLA for same-sex couples?

Ever since the U.S. Supreme Court declared the definition of marriage created by the Defense of Marriage Act (DOMA) unconstitutional, many have been waiting to see how the change would be put to practical use. One such change seems to be on the horizon, and it involves the Family Medical Leave Act (FMLA). Prior to the high court’s ruling, FMLA did not offer automatic protection for same-sex couples, though companies were free to offer it if they chose to do so. But now, a tweak the Department of Labor’s Wage and Hour Division made to a fact sheet seems to foretell a change for the better regarding same-sex couples and FMLA.

The Wage and Hour Division amended Fact Sheet 28F, referred to as the Qualifying Reasons for Leave under the Family and Medical Leave Act. The change added “same-sex” to the definition of marriage. Since the DOL is including same-sex couples in the married couple category, this means that any benefits extended to married couples also now apply to same-sex couples, and this would include taking a leave from work to care for an ill spouse or partner.

However, this is just a note added to the guidelines; it is not a law. If someone were to take an employer to court based on this change alone, it might not be enough to make a case. However, it does signal that those rights will be legally extended in the near future, which would mean companies who have refused to offer such benefits to same-sex couples in the past would be legally obligated to do so.

FMLA is an important benefit for those who have family members who need care. The fact that the DOL is taking any action at all is a positive step. For anyone who has been denied FMLA for reasons they believe are unjust, speaking to a legal professional experienced in such cases would be beneficial.

Source:, “FMLA Now Covers Same-Sex Marriage (Sort Of)” Jon Hyman, Sep. 03, 2013

super lawyers
New York County Lawyers Association
New York City Bar
NELA Advocates for Employee Rights National Employment Lawyers Association
lead counsel lc verified