Protecting Employers Since 1985

August 2013

By: James B. Sherman, Esq.

In our July Minnesota Client Alert, Wessels Sherman predicted Minnesota’s new same-sex marriage law – which took effect on August 1 st – would have implications for the Family and Medical Leave Act (FMLA), especially in light of the Supreme Court’s decision to strike down portions of the Defense of Marriage Act. We stated, “[w]hat can be said for certain is that FMLA leave is available to an employee to care for a same-sex spouse’s serious health condition if the employee resides in a state that recognizes same-sex marriage, ” such as Minnesota.

On August 9, 2013 the U.S. Department of Labor (DOL) confirmed our prediction and issued, for the first time, regulatory guidance regarding FMLA benefits as they relate to same-sex spouses. The DOL stated workers in same-sex marriages who are living in a state where same-sex marriage is legal may now take FMLA leave to care for their spouses. The DOL guidance, however, does not clear up the confusion of whether FMLA benefits are available to same-sex married couples who live in states that do not recognize same-sex marriage. Although that remains an open issue, the following may provide insight into the DOL’s enforcement position on the matter:

  • Labor Secretary Tom Perez said the FMLA guidance is “one of many steps” the DOL will take to implement the Supreme Court’s decision and that the DOL will “look for every opportunity” to ensure the Supreme Court’s decision is implemented “in a way that provides the maximum protection for workers and their families.”
  • The Office of Personnel Management (OPM), which, among other things, recruits the federal workforce, explicitly stated it will extend FMLA benefits to all federal employees in same-sex marriages “regardless of the employee’s… state of residency.”

Presumably, the DOL is likely to take a similar position to that of the OPM in how it chooses to enforce the FMLA for legally married same-sex couples residing in states that do not recognize same-sex marriage.

Regardless, the fact remains that Minnesota is one of thirteen states along with the District of Columbia that does recognize same-sex marriage. Accordingly, Minnesota employers are advised to comply with the DOL guidance and provide FMLA benefits to eligible Minnesota employees that need to care for a same-sex spouse suffering from a serious health condition. If you have any further questions or concerns regarding FMLA benefits or any other issues surrounding same-sex marriage, feel free to contact Wessels Sherman attorneys James Sherman at (952) 746-1700, or email

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