Department of Labor has new rules for FMLA (Family Medical Leave Act) for spouses of same sex marriage.

The Supreme Court in the case of the United States v. Windsor struck down the Defense of Marriage Act (DOMA Section 3) as unconstitutional. Most lawyers believe that this case signals that the U.S. Supreme Court will recognize Same Sex Marriage as a constitution right for all states. This will certainly affect many laws but especially the Family Medical Leave Act (“FMLA”). The Department of labor immediately after the Windsor decision announced what the then-current definition of spouse under the FMLA allowed, given the decision: Eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognizes same-sex marriage. Texas has not recognized same sex marriage and therefore employees in the El Paso, Texas area cannot obtain FMLA benefits under Federal Law even if they were married in a state that recognizes same sex marriage. However Same sex marriage is legally recognized when the New Mexico Supreme Court issued its opinion in December of 2013. In fact the district clerk of Dona Anna County started issueing marriage licenses to Las Cruces, New Mexico same sex couples in August of 2013. Therefore if you live in Las Cruces, New Mexico and have a same sex spouse then you are covered by FMLA if you meet all the other requirements. ( see practice areas for the requirments). El Paso, Texas residents will have to wait for the highly anticipated ruling from the Supreme Court. Again, most experts believe the US Supreme Court will recognize same sex marriage the Court has surprised us before it is not outside the realm of possibilities that they will simply say that this is a state by state decision.