3. Expanded use of FMLA leave. Overturning DOMA could also change the interpretation of the Family and Medical Leave Act (FMLA). Presently, eligible employees have the option to take up to 12 weeks of unpaid leave to care for an immediate family member, such as their spouse. But as the FMLA is a federal law, employees in states that recognize same-sex marriages are not considered eligible to take this leave to care for their same-sex partner. If you're a same-sex couple, you'd have to check the language of your state's family leave laws to determine the time you may take off. Some states, including Connecticut, Maine and Vermont, allow eligible employees to use the time to care for a domestic or civil union partner.
As mentioned, if DOMA is ruled constitutional, it could make a substantial difference for same-sex couples in states where their marriage is legally recognized. But the effect it could have on couples in other states is unclear. It's to be determined whether employee rights will be guaranteed based on the state you live in, the state you reside in, or the state you were married in, Solomon notes. As an example, a same-sex couple who was married in Maryland and works in Washington, D.C., (two areas that recognize same-sex marriages) but lives in Virginia (where same-sex marriages aren't recognized) should consult with an attorney to determine what affect the ruling may have for them. "It's a popular idea that if the Defense of Marriage Act falls away, all problems are solved," Solomon says. "Obviously, a lot of rights will be obtained, but I think in some ways, things could become more complicated before they get any simpler."
Companies might also want to begin planning. "The best advice for employers is to begin doing some thinking about how things may change," Solomon says. "No one has a crystal ball as to what the outcome will be, and it's uncertain when the ruling will happen, but if there are changes coming that are just months away, it's wise for companies to begin thinking of what procedures will need to change, and to gear up to communicate with employees on what may be different."