In light of the U.S. Supreme Court in United States v. Windsor, which struck the Defense of Marriage Act (DOMA) provision limiting marriage to opposite sex spouses, the government agencies have been working on updating guidance in a number of areas. Two recent updates are noteworthy:
Social Security Benefits — The Social Security Administration has started processing applications for Social Security benefits from same-sex spouses. Apparently, for now, only those couples residing in states where same-sex marriage is recognized will be entitled to the benefits. SSA has instructed its employees to hold other claims. SSA has stated that it is continuing to work with the Justice Department to interpret the Windsor decision (presumably with regard to couples residing in other states). Here is a link to the internal SSA guidance.
FMLA Rights — The DOL has updated its Fact Sheet regarding FMLA rights to include same-sex spouses in the definition of “spouse.” The definition interprets “spouse” based on the state law in which the employee resides. (http://www.dol.gov/whd/regs/compliance/whdfs28f.htm.) This residency requirement stems from the DOL’s FMLA regulations (issued prior to Windsor), which state that marriage for FMLA purposes is determined by the state of residence. Unless and until the DOL issues further guidance on this issue, this means that FMLA rights only have to be provided to those same-sex married couples residing in states where their marriage is recognized. See our Client Alert regarding the Windsor decision’s impact on the FMLA for a further discussion of this issue (http://www.proskauer.com/publications/client-alert/supreme-courts-doma-decision-affects-employers-obligations-under-the-fmla.)