The Department of Labor (DOL) recently updated Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act. For purposes of the Family and Medical Leave Act (FMLA), the term “spouse” includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides. This guidance is based on the current definition of “spouse” in the FMLA regulations, but it is inconsistent with the DOL and Internal Revenue Service (IRS) position with respect to employee benefit plans, where the “state of celebration” controls the marital status. This inconsistency may potentially cause administrative and employee relations challenges for employers with employees in more than one state or whose same-sex married employees move to a new state.


Since 1996, Section 3 of the Defense of Marriage Act (DOMA) has barred same-sex marriages from being recognized for all federal purposes, including the right to take FMLA leave to care for a same-sex spouse with a serious health condition. On June 26, 2013, the U.S. Supreme Court invalidated Section 3 of DOMA in United States v. Windsor, holding that same-sex marriages valid under state law are recognized for federal purposes. Refer to our previous advisory for a description of Windsor and its impact on employee benefit plans.

State of Residence v. State of Celebration

Following the Windsor decision, it was unclear whether the DOL and the IRS would recognize same-sex marriages based on the state in which the couple was married (the “state of celebration”) or based on the state in which the couple resides (the “state of residence”).

Employee Benefit Plans

As reported in our recent advisory, the IRS stated in Revenue Ruling 2013-17 that legally married same-sex couples will be treated as married for purposes of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code  based on the “state of celebration,” regardless of where the couple resides. The DOL followed this position in DOL Technical Release 2013-04, confirming that for employee benefit plan purposes, same-sex marriages will be recognized based on the “state of celebration.”


The DOL’s updated fact sheet points out, however, that for FMLA purposes the “state of residence” controls the marital status because the current FMLA regulations (29 CFR  Section 825.102) provide that “Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” The result is that the definition of spouse for FMLA purposes is inconsistent with the treatment of same-sex spouses for purposes of employee benefit plans.  

A New Factor in the FMLA Eligibility Determination

As clarified by the DOL’s updated Fact Sheet, under the current FMLA regulations, an employee is not entitled to FMLA leave to care for a same-sex spouse with a serious health condition unless that employee resides in a state that recognizes same-sex marriage. Although some employers may be inclined to offer FMLA leave to all employees regardless of where they reside, this approach can have unintended consequences to the employer.1 As a result, unless and until the DOL revises its regulation to follow the “state of celebration rule,” employers should consider the same-sex marriage laws of the state where an employee resides when making a determination regarding eligibility for FMLA leave. 

Determining whether an individual is a “spouse” based on the marriage laws of the state where the employee resides requires that employers become familiar with multiple state laws (its own state, neighboring states, and all states where its employees reside):

  • For example, an employer located in Oregon (a state that does not recognize same-sex marriage), should be aware that an employee who resides in California or Washington is entitled to take FMLA leave to care for a same-sex spouse’s serious health condition even though the state where the employer is located does not recognize same-sex marriage.
  • If an employee moves from Washington to Idaho while taking FMLA leave to care for a same-sex spouse, the employee would no longer be eligible for FMLA to care for the seriously ill spouse under the current FMLA regulations.

Although DOL Fact Sheet #28F does not expressly address whether a marriage “recognized under state law” is limited to states that have legalized same-sex marriage,2 or if an employer is required to offer FMLA rights to an employee who resides in a state that “recognizes” a same-sex marriage validly formed in another state, the plain language of the regulation suggests that employees who reside in states that “recognize” same-sex marriage, whether lawfully entered into in that state or another state, are eligible for FMLA leave to care for a spouse. For example, although Illinois marriage law does not allow same-sex marriage, it explicitly recognizes the validity of same-sex marriages legally entered into in other jurisdictions. If an employee entered into a legal same-sex marriage in Iowa and moves to Illinois, the employee should be entitled to FMLA leave to care for a same-sex spouse with a serious medical condition.

Non-FMLA Leave

If an employer determines that an employee is not eligible for FMLA leave to care for a same-sex spouse or partner due to the laws of the state where the employee resides, the employer may still offer that employee a non-FMLA leave of absence to care for a same-sex spouse or partner. To avoid employee relations issues or to support employees in same-sex marriages, this is likely the approach most employers will take.

However, when offering non-FMLA leave, it will be important to not count such time off (whether paid or unpaid) against an otherwise FMLA-eligible employee’s FMLA entitlement. And, if the employee is classified as exempt from overtime, and taking an unpaid non-FMLA leave of absence, it will be important to remember those circumstances when partial-day deductions from an exempt employee’s salary are prohibited under the Fair Labor Standards Act (FLSA).

DOL Technical Release 2013-04 and other statements made by DOL representatives indicate that the DOL may revise its FMLA regulations in the future to extend FMLA rights to all same-sex spouses regardless of residence. If the DOL revises the FMLA regulations, employers may offer FMLA to employees legally married to same-sex spouses regardless of where the employee resides. However, in the interim, employers will need to consider where an employee resides for all FMLA requests made with respect to same-sex spouses.

If you have specific questions about the FMLA or the FLSA, please contact your Davis Wright Tremaine employment lawyer before determining whether an employee is entitled to FMLA leave. If you want more information on the repeal of DOMA and its impact on your employee benefit programs, please contact your usual Davis Wright Tremaine benefits lawyer. 

1 If an employee is not entitled to FMLA leave under the FMLA, the employee is still entitled to his or her full FMLA for other qualified absences. Additionally, the employer could potentially lose its overtime exemption under the Fair Labor Standards Act (FLSA) if the leave is not FMLA leave.
2 As of Oct. 1, 2013, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and Washington D.C. all have legalized same-sex marriage.