Last month, the Seventh Circuit upheld a district court decision in Wolf v. Walker that overturned Wisconsin’s 2006 state constitutional amendment banning same-sex marriages. Last week, the Supreme Court denied review of the case, which means the decision stands. As a result, Wisconsin now recognizes same-sex marriages.
The decision actually relates to employment law via the Family and Medical Leave Act and the Wisconsin Family and Medical Leave Act. Both laws provide unpaid leave entitlements to employees, including for an employee to care for the serious health condition of an employee’s spouse.
Prior to the Wolf v. Walker decision, there was confusion as to the leave rights of Wisconsin employees who obtained marriage licenses from states that recognized same-sex marriages. This was because the FMLA regulations defined spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides[.]” Thus, an employee with a same-sex spouse living in Minnesota, where same-sex marriage was previously recognized, but working in Wisconsin, where it was not recognized, would arguably not qualify for FMLA benefits. This could create a significant amount of confusion for Wisconsin employers near the state border who had employees residing across state lines and a part of same-sex marriages.
Moreover, Wisconsin had a quirk in its state law in this regard as well that was clarified a few months ago. Under a 2009 law, Wisconsin recognized domestic partnerships for same-sex couples. The Wisconsin Family and Medical Leave Act extended benefits to eligible employees for care of the serious health condition of a domestic partner. Proponents of the state constitutional amendment banning same-sex marriages argued this law conflicted with the state constitution and, thus, same-sex domestic partnerships were not eligible for benefits under the WFMLA. The domestic partnership law was challenged as unconstitutional, and later upheld, in a Wisconsin Supreme Court case from earlier this year. This had meant that an employee who was in a same-sex relationship could qualify for state leave entitlements as a domestic partner but not as a spouse. Whew.
The procedural end to Wolf v. Walker clarifies that all married individuals in Wisconsin are also eligible to qualify for FMLA benefits. There are, of course, other conditions that must be met, including the number of employees employed by the employer and the duration of time the employee has worked for the employer. But this decision adds a measure of clarity for employers trying to navigate the ins and outs of family and medical leave.