For the time being, employers in states that don’t recognize same-sex marriage don’t have to comply with a new rule changing the definition of spouse under the Family and Medical Leave Act (FMLA). The rule was to take effect on March 27, but a federal district judge in Texas issued a temporary injunction on March 26 in response to a challenge from the attorneys general in Texas, Arkansas, Louisiana, and Nebraska.
District Judge Reed O’Connor ruled that the states making the challenge showed a likelihood that they would prevail and that they would be irreparably harmed if the rule were allowed to take effect. If the U.S. Department of Labor’s (DOL) rule is allowed to take effect, it will require employers covered by the FMLA to allow eligible employees to take leave under the Act to care for same-sex spouses.
The rule revises the definition of spouse under the FMLA so that eligible employees in legal same-sex marriages can take FMLA leave to care for their spouse or family member regardless of whether or not they live in a state that recognizes same-sex marriage.
Under the new rule, eligibility for leave under the FMLA is based on the law of the place where the marriage was entered into—the “place of celebration.” The new rule aims to replace the “state of residence” standard, which meant that same-sex spouses in states not recognizing same-sex marriages wouldn’t have family leave rights under the FMLA.
The states challenging the rule claim that it violates a part of the federal Defense of Marriage Act (DOMA) that wasn’t invalidated by the U.S. Supreme Court’s United States v. Windsor ruling. Section 2 of DOMA says, “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.”
The states prompting the judge’s ruling argued that the DOL’s new rule violates the valid section of DOMA because it requires employers covered by the FMLA to recognize same-sex marriage as well as same-sex marriages entered into in other states. The judge has offered to hold a hearing on April 13 if one is requested.
The U.S. Supreme Court is considering four same-sex marriage cases, and a ruling on the issue may make O’Connor’s action moot, depending on how broad or narrow the Court’s ruling is.
Laurianne J. Balkum, an attorney with Constangy, Brooks, Smith & Prophete LLP in Austin, Texas, advises employers in states that don’t recognize same-sex marriage to watch the issue closely. For now, the injunction means they don’t have to allow FMLA leave for care of same-sex spouses, although they are free to do so. She said many employers are prepared to change their policies to comply with the new rule and may still elect to implement those new policies.
O’Connor’s injunction is temporary but will stay in effect until there is a determination of the case. That may come from a ruling from the Supreme Court this summer, or if a Supreme Court decision isn’t broad enough to settle the question on the FMLA rule, a resolution would come after a lawsuit runs its course, Balkum said.