In the wake of the U.S. Supreme Court’s landmark June 26, 2013 decision in United States v. Windsor1 striking down §3 of the Defense of Marriage Act (DOMA), many questions have arisen for employers, human resources professionals, attorneys and others regarding the impact of the decision on the administration of numerous workplace policies and benefits.

Section 3 of DOMA defined “marriage” under federal law as a legal union between one man and one woman as husband and wife, and defined “spouse” as a person of the opposite sex who is a husband or a wife. Because these definitions impacted the rights and benefits conferred by over 1,000 federal laws by limiting them to married couples in heterosexual unions, the post-Windsor legal landscape is filled with questions about how various statutes will now be interpreted and enforced.

‘United States v. Windsor’

Plaintiff Edith Windsor, a New York resident who entered into a lawful same-sex marriage in Ontario, Canada, filed a federal challenge to the constitutionality of §3 of DOMA following the death of her spouse Thea Spyer in 2008. Though New York state legally recognized the marriage, following Spyer’s death, the Internal Revenue Service (IRS) denied Windsor a marital estate-tax exemption—which is only available to the “surviving spouse” of the deceased—because she did not qualify as a “spouse” under the federal definition as codified in DOMA. As a result, Windsor was required to pay more than $360,000 in federal estate taxes.

After the IRS denied her request for a refund, Windsor filed suit to challenge the constitutionality of DOMA. Both the Southern District of New York and the Second Circuit Court of Appeals ruled that the relevant portion of the statute was unconstitutional and ordered the United States to refund the payment. The Supreme Court in turn, in a majority opinion authored by Justice Anthony Kennedy, held that §3 of DOMA “violates basic due process and equal protection principles applicable to the Federal Government.” The opinion included significant language expounding upon the dignity of same-sex marriages, but also focused heavily upon the deference the federal government has traditionally shown towards state-law policies regarding domestic relations, and particularly with respect to laws governing marriage. As such, the court held that DOMA represented a departure from this tradition of relying on state law to define marriage, and further operated specifically to impose a disadvantage and a separate status on a class of marriages that, in the case of Windsor and her spouse, was lawful in New York, and concluded that there was no legitimate purpose to the law and that it violated the Constitution’s principles of equal protection.


The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons with continuation of group health coverage under the same terms and conditions as if the employee had not taken leave.2 Employees are generally eligible for FMLA leave if they: (i) have worked for their employer for at least 12 months; (ii) have worked for at least 1,250 hours over the past 12 months; and (iii) work at a location where the employer-company employs 50 or more employees within 75 miles. Covered reasons for FMLA leave include leave to care for a spouse, child, or parent who has a serious health condition and any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a covered military member on covered active duty. Additional leave rights apply to care for a covered military service member with a serious injury or illness if the employee is the service member’s spouse, child or next of kin.

The FMLA and its regulations define “spouse” as “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.”3 While the fact that this definition ties directly to state definitions would suggest that the federal DOMA definition would not have been relevant to the FMLA, the U.S. Department of Labor (DOL), which enforces the FMLA, had previously held to the contrary. In a Nov. 18, 1998 opinion letter,4 the DOL opined that because the FMLA is a federal statute, “only the Federal definition of marriage and spouse as established under DOMA may be recognized for FMLA leave purposes.” Thus, under the DOL’s interpretation, same-sex married couples were not granted leave rights under the FMLA even if the employee resided in a state that recognized same-sex marriage.

However, the Supreme Court’s recent invalidation of §3 of DOMA overturns the DOL’s prior opinion with regard to the definition of “spouse” for FMLA purposes. In August 2013, the DOL released updated guidance regarding the application of the FMLA to same-sex married couples and, adopting a plain language reading of the statute, affirmed that, post-Windsor, state law now dictates who qualifies as a “spouse” under the FMLA for same-sex as well as opposite-sex married couples.5 Accordingly, same-sex couples residing in states that recognize same-sex marriage are now entitled to leave benefits under the FMLA.

While this is certainly a positive step for same-sex married couples in terms of access to leave benefits under the FMLA, the impact will not be uniform for all same-sex married individuals. Because the Windsor decision left intact §2 of DOMA, which allows states to define marriage as they wish and to not recognize another jurisdiction’s same-sex marriage, individuals who reside in states that do not permit or otherwise recognize same-sex marriages remain outside of the coverage of the FMLA. This means that same-sex couples who are married in a jurisdiction that allows same-sex marriage, but who live in a state that does not define marriage as including them, may be lawfully denied FMLA leave.6 As a result of this lack of uniformity, certain employers may face challenges in administering their FMLA-governed leave policies. Employers with operations in several states, or those who have employees living in multiple states, must now be cognizant of these states’ laws with regard to same-sex marriage and administer their FMLA leave policies accordingly. It is noted, however, that the FMLA sets forth only the minimum leave benefits required under federal law, and employers may voluntarily offer leave benefits greater than that which is required. Employers are therefore free to extend equivalent leave benefits to employees in same-sex marriages even when the state in which the employee resides does not permit or recognize same-sex marriage, just as they were free to do prior to the Windsor decision.

Employers and their counsel should also be cognizant of the fact that some states, while not explicitly recognizing same-sex marriage, may nevertheless have state leave laws that expand the definition of covered family members to include civil union or domestic partners and/or their children. For example, although New Jersey does not presently permit same-sex marriage, under the New Jersey Family Leave Act, unpaid leave must be granted in certain circumstances to allow an eligible employee to care for his or her civil union partner (as defined under the laws of the state).7

In addition, employers should consider with their counsel the potential for exposure to claims under state and/or federal non-discrimination laws now that same-sex spouses are recognized under federal law. While Title VII of the Civil Rights Act of 19648 does not currently prohibit discrimination based on sexual orientation, this area of the law is evolving and a number of states and localities, including New York and New York City, have civil rights and anti-discrimination laws that provide broader protections for sexual orientation, marital status or partnership status as a protected class.

Employee Benefit Plans

The Windsor decision also raises issues for employers to consider with regard to their retirement and health (and other welfare) benefit plans that are governed by federal law (including the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the Internal Revenue Code (Code)). Notably, in contrast to the FMLA’s “state of residence” rule, the U.S. Department of the Treasury (Treasury) and the IRS clarified in a revenue ruling issued on Aug. 29, 2013 that couples who legally marry in states (or foreign jurisdictions) permitting same-sex marriage will be treated as married for all federal tax purposes regardless of whether the state in which they reside permits, recognizes or honors same-sex marriages.9

Prior to Windsor, the value of employer-provided health benefits was imputed as income to the employee for federal tax purposes because the spouse did not qualify as a “spouse” under the Code’s exemption from income tax for benefits provided to a spouse (unless the spouse otherwise qualified as the employee’s tax dependent). Pursuant to the revenue ruling and its “state of celebration” rule, employees will no longer be federally taxed on the value of employer-provided health coverage for their same-sex spouses, regardless of the state in which the employee lives or in which the employer is based. The revenue ruling also addresses the ability to pay for health coverage for a same-sex spouse on a pre-tax basis through an employer’s Code §125 cafeteria plan, and provides some guidance with regard to the retroactive application of the ruling. Additional guidance on these issues is expected.

The revenue ruling also discusses the impact of Windsor on other employee benefits governed by the Code, such as health and dependent care flexible spending accounts (FSAs), health savings accounts (HSAs), health reimbursement accounts (HRAs) and tax-qualified retirement plans. When §3 of DOMA was in effect, an employee generally was not permitted to obtain tax-free reimbursements under an FSA, HSA or HRA for expenses incurred by a same-sex spouse, and the spousal consent and survivorship rules under qualified pension plans (as well as other rules) did not apply to same-sex spouses. In the revenue ruling, the IRS makes clear that all of this changes in the post-DOMA world.

On Sept. 18, 2013, the DOL followed up on the IRS guidance and announced that it too will interpret the term “spouse” as including a same-sex spouse legally married in any state or foreign jurisdiction that recognizes the marriage, even if the couple resides in a state that does not permit or recognize same-sex marriage, for purposes of ERISA, the Code and governing DOL regulations.10 Like the IRS, the DOL confirmed that this interpretation does not include individuals (of the same or opposite sex) in a domestic partnership or civil union, even if the partners have the same rights as married couples under the applicable state law. Under this guidance, it is clear that same-sex spouses who are covered under group health plans will now have independent rights as “qualified beneficiaries” under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and for purposes of the Health Insurance Portability and Accountability Act (HIPAA), regardless of the employee’s state of residence. The Technical Release does not provide detailed guidance for employers and other plan sponsors with regard to their employee benefit plans, but the DOL intends to issue further guidance addressing specific provisions of ERISA and its regulations. Employers should review their benefit plan documents, summary plan descriptions and benefit election forms to ensure that the term “spouse” is properly defined to afford same-sex spouses all legally required rights, and ensure that plans are administered as required under the guidance. Employers should also ensure that all of their employees’ records are properly updated to reflect an accurate marital status for taxation and other purposes and that beneficiary information is updated.


As is clear from the rapidly evolving post-Windsor legal landscape, practitioners in the fields of employment law and employee benefits law, as well as in-house counsel, are well advised to educate themselves on the new requirements employers must satisfy to comply with the myriad changes triggered by the Supreme Court’s repeal of §3 of DOMA. While the impact of Windsor on access to workplace benefits is unquestionably positive for many employees in same-sex marriages, and will further standardize benefits administration for employers, there remain areas where Windsor‘s impact has the potential to cause complications, and employers and their counsel must therefore proceed with caution and attention to detail.

Katharine Parker is a partner and co-head of Proskauer Rose’s employment law counseling and training group. Roberta Chevlowe is senior counsel in the employee benefits, executive compensation and ERISA litigation practice. Laura M. Fant is a labor and employment associate.


1. 570 U.S.— (2013).

2. 29 U.S.C. §2601 et seq.

3. 29 C.F.R. §825.102.

4. Available at

5. DOL Wage and Hour Division Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act (August 2013), available at

6. Presently 13 states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington) and the District of Columbia allow same-sex marriage.

7. N.J. Stat. Ann. §34:11B-1 et seq.

8. 42 U.S.C. 2000e et seq.

9. Rev. Rul. 2013-17. Effective Sept. 16, 2013.

10. DOL Tech. Rel. 2013-04.