Tennessee Labor Talk

DOMA and the FMLA – What Should Employers Do “In the Meantime”?

Posted in Leaves of Absence/FMLA Law and Practice

The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?”

Below is some guidance:

  • Employers should proceed with some caution (a blast of the obvious).
  • If faced with an employee who requests leave for an ailing same-sex spouse, and the couple lives and works in a state that recognizes the same-sex union, the employer can (and should) grant the leave and count it as FMLA; not doing so likely will invite an interference claim;
  • If faced with an employee who requests leave for an ailing same-sex spouse, and the couple lives and works in a state that does not recognize the same-sex marriage BUT,
    • the couple has a license from a state that does recognize same-sex marriage, then the employer can (and likely should) grant the leave. Granting the leave will avoid an interference claim. However, there is some risk that the leave, if granted, will later be considered non-FMLA-qualifying and thus will not be considered to have exhausted the employee’s available leave time. To address that risk, the employer should document
      • That the leave is being granted at the employee’s request
      • That the request is being granted in the midst of legal uncertainty
      • That the employer is relying on the request and the information provided to grant the leave under FMLA.

      Documenting the employee’s request in this way will help the employer show promissory estoppel. That is, the employer is changing its conduct (granting the leave) in reasonable reliance on the employee’s “promise” (the request to treat the leave as FMLA-qualifying).

    • the couple does not have a license from a state that recognizes same-sex marriage, then the employer should deny the leave as counting under the FMLA but can choose to grant the leave under some other employer policy (sick leave, vacation, personal leave). If the employer grants the leave and tries to count the leave as FMLA-qualifying, the employer would have a difficult time in showing “reasonable reliance” – a necessary element in promissory estoppel identified above. The promissory estoppel doctrine requires that the employer’s reliance be “reasonable” and relying on a request in a state that does not recognize the marriage, for a couple that does not have a license from a state recognizing the marriage, would not likely be viewed as reasonable.