Virginia Employment Law Blog
The Department of Labor began to take steps to implement the
Supreme Court’s decision in United States
v. Windsor by issuing guidance regarding the eligibility of same-sex
couples for FMLA leave. The agency
removed references to DOMA in the FMLA and clarified the ability of same-sex
couples to take leave to care for an ailing spouse. While states remain in the driver’s seat in
regards to defining such rights, it seems the DOL may use Windsor as an impetus to extend same-sex rights more broadly.
The FMLA looks to state law to define marriage and thus the
term “spouse.” DOMA previously did not
allow the FMLA to recognize a same-sex union even if state law did so. The FMLA now includes those employees who are
covered under state laws that recognize same-sex unions.
Windsor, however,
does not require states to recognize same-sex marriage. Under the DOL’s guidance, the eligibility of
same-sex couples depends on whether the state they reside in recognizes their
relationship. Federal agencies have
moved to independently expand rights- the Social Security Administration has
begun processing spouse retirement claims for same-sex marriages and the Office
of Personnel Management has extended health, dental, life, and long-term care
insurance to same-sex couples. It will
be interesting to see if the DOL attempts to extend FMLA benefits to same-sex
couples who live in states that do not recognize same-sex marriages, especially
given that Secretary Perez has publically stated the agency’s intention to
expand protections for same-sex couples as broadly as possible.
Secondly, here’s a link to an interesting
Q&A regarding mediation in employment law disputes. I won’t attempt to summarize the interview
here, but it is well worth a quick read.