The Family and Medical Leave Act (FMLA) is a federal statute that allows eligible employees to take a leave of absence from work without losing their health insurance coverage in certain circumstances, which includes providing care to a spouse with a serious health condition.  The definition of “spouse” has evolved in the United States to include “same-sex spouses” in some cases.  Those changes have affected eligible employees’ rights in states that recognize same-sex marriage, and could affect employee’s rights in Idaho due to a recent lawsuit challenging Idaho’s same-sex marriage ban.


The FMLA entitles eligible employees of covered employers to take an unpaid job-protected leave for specific medical and/or family related reasons for a period of twelve (12) work weeks in every twelve (12) month period.  It requires employers to continue group health insurance coverage for that employee under the same terms and conditions as if the employee had not taken leave during that period.

The FMLA applies to the following employers:

  • Private-sector employers with 50 or more employees in at least 20 workweeks during the current or preceding calendar year
  • Public agency employers including local, state, or Federal government agencies, regardless of the number of employees employed
  • Public or private elementary or secondary schools regardless of the number of employees employed
  • The following employees are eligible for coverage:

  • The employee must work for a covered employer
  • The employee must have worked for the employer for at least 12 months
  • The employee must have worked at least 1,250 hours for the employer in the 12-month period preceding leave
  • The employee must work in a location where the employer has a least 50 employees within 75 miles
  • Eligible employees may take up to 12 weeks of unpaid leave every year for the following reasons:

  • The birth or adoption of a child
  • To care for a spouse, child, or parent with a serious health conditions
  • If the employee suffers a serious health condition making him or her unable to perform essential job functions
  • For a qualifying exigency arising out of the fact that spouse, child, or parent is a military member on covered duty
  • Until recently, same-sex partners of eligible employees were not considered “spouses” under the FMLA.  Accordingly, eligible employees were not covered by the FMLA if they took time away from work to care for a same-sex spouse with serious health conditions or for any qualified exigency arising out of a same-sex spouse’s military duty.

    The United States Supreme Court’s ruling recognizing same-sex relationships in a limited capacity in U.S. v. Windsor this year has, however, impacted FMLA coverage in many states.  As explained below, Idaho is not currently one of the sates in which employers are required to provide FMLA coverage to employees in same-sex relationships during leave to care for their spouse or partner.  However, a recent challenge to Idaho’s same-sex marriage ban could change that.


    On November 8, 2013, four Idaho couples filed a lawsuit in the United States District Court, District of Idaho, challenging Idaho’s same-sex marriage ban.   The same-sex marriage ban has been in place since 2006 when Idaho’s constitution was amended to include a provision stating that heterosexual marriage is the only legally recognized form of marriage in Idaho.

    The couples challenged the same-sex marriage ban following the Supreme Court’s ruling in Windsor, which the Court issued in June of 2013.   In Windsor, the Court held that Section 3 of the Defense of Marriage Act (DOMA), which interprets the terms “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional.  The Windsor decision only applied to Section 3 of DOMA.  It did not address other federal statutes, including the FMLA.  However, since the Supreme Court’s ruling in Windsor the Department of Labor’s Wage and Hour Division, which administers the FMLA, has taken action consistent with the Court’s holding.


    In July 2013, the Department of Labor revised Fact Sheet #28F entitled Qualifying Reasons for Leave under the Family and Medical Leave Act.  The revised Fact Sheet added “same-sex marriage” to the definition of spouse under the FMLA. However, the updated fact sheet also provides that, for FMLA purposes, the state of a couple’s residence controls their marital status. This is because current FMLA regulations that pre-dated Windsor provide that a “spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides…”  Accordingly, an employee in a same-sex relationship does not have a right to FMLA coverage to care for his or her spouse or partner if the laws of the state in which she or he resides do not recognize same-sex marriages.

    Should the four couples who have challenged the same-sex marriage ban in Idaho be successful, same-sex couples whose employers are covered by the FMLA should become eligible for FMLA leave to care for a same-sex spouse or partner.   In either case, to avoid liability, employers should make their policies known to all employees.  Further, if the challenge on the same-sex marriage ban in Idaho is successful, employers should consider the following implications.


  • Covered employers must display and keep on display posters explaining the FMLA and telling employees how to file a complaint for alleged FMLA violations with the Wage and Hour Division.  Covered employers are also required to post notices and provide employees with general notices outlining the basic provisions of the FMLA.   If the challenge to the same-sex marriage ban is successful in Idaho, employers should revise and update notices and posters to ensure that employees understand that the definition of “spouse” includes same-sex spouses.
  • The conditions that qualify an employee to take a leave of absence to care for a family member include conditions that require an overnight hospital or medical-care facility stay, chronic conditions that cause occasional incapacitation to the family member; long-term conditions where treatment may not be effective but the family member is under the continuing supervision of a health care provider.  Again, if the gay-marriage ban challenge is successful in Idaho, employers should extend the right to take a leave of absence under the FMLA to employees whose same-sex partner meets any of these conditions.
  • Employers located in a state that does not recognize same-sex marriage should be aware that an employee who resides in a state that recognizes same-sex marriage is entitled to take FMLA leave to care for a same-sex spouse. For example, an employee who resides in Washington and works for a covered Idaho employer is entitled to take FMLA leave to care for a same-sex spouse.
  • An employee who moves from a state that recognizes same-sex marriage to state that does not recognize same-sex marriage while taking FMLA to care for a same-sex spouse would no longer be eligible for FMLA under the current regulations.
  • Even if the challenge is not successful, employers who want to extend leave of absence rights to same-sex couples do not need to wait for same-sex marriage to be recognized in Idaho.  The FMLA is a floor, not a ceiling and employers are free to provide rights greater or more beneficial to employees than those set forth in the FMLA.
  • Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.