Gay Workers Can Take Family Leave Now That DOMA Is History

On Wednesday, two landmark Supreme Court rulings changed the legal landscape for same sex couples who want to marry. In United States v. Windsor, the Defense of Marriage Act (DOMA) was declared unconstitutional, which means the federal government will now honor the marriages of same-sex couples when it provides benefits in states where it is legal. And Hollingsworth v. Perry held that the state of California can continue issuing marriage licenses to same sex couples (which state officials promptly did).

Currently, 13 states and the District of Columbia recognize marriage between same-sex couples. After Wednesday’s ruling, same-sex couples married in these jurisdictions are entitled to over 1,000 previously denied benefits and protections, including access to family and medical leave, under the Family and Medical Leave Act (FMLA).

The Family and Medical Leave Act allows eligible workers to take up to 12 weeks of unpaid, job-protected leave to care for an ill family member, recover from a serious illness, or to provide care to a newborn baby or newly adopted or fostered child. Since its passage in 1993, FMLA has been used more than 100 million times by American workers to help balance the demands of the workplace and home. As the Center for American Progress has previously reported, until last week, same sex spouses were not uniformly eligible for FMLA leave to care for their spouses.

Unfortunately, in states where same-sex marriage is not legally recognized, gay* workers remain ineligible for FMLA leave and do not have the right to job protected time off to care for an ill partner. Lacking protections under the FMLA, gay workers are faced with the tough economic decision of whether to take unprotected time off from work to care for their partners, risking the loss of income and possibly their jobs. Wednesday’s rulings were a huge step forward toward marriage equality, but until marriage between same-sex couples is recognized in all 50 states, a portion of workers will lack a critical protection available to most of the American workforce.


And beyond that, there is more work to be done for family and medical leave. Workers who need to take leave often cannot afford to — approximately 46 percent of workers who needed leave said that they could not afford to take it without pay. The Center’s proposed paid family and medical leave program, Social Security Cares, would establish a nationwide program for paid family and medical leave for nearly all U.S. workers, and would cover domestic partners and same sex spouses. Paid leave would encourage labor force participation, increase workers’ lifetime earnings, and decrease employee turnover, helping all American workers be less economically vulnerable when balancing work and family care.

* In this post the term “gay” is used as an umbrella term to describe people that identify as lesbian, gay, or bisexual.