The Department of Labor’s same-sex spouse rule under the Family and Medical Leave Act was supposed to go into effect on March 27. At the 11th hour, however, a federal judge in Texas stepped in and preliminarily enjoined application of the final rule in four states.
The states of Texas, Arkansas, Louisiana, and Nebraska had sought the preliminary injunction, taking issue with the DOL rule’s changed definition of “spouse” under the FMLA. To determine who would be considered a spouse, the revised definition referred to the law in the “state of celebration,” which is the state in which the marriage took place, instead of the law of the state in which the employee resides.
According to the judge, that’s where the DOL exceeded its authority. He noted that the Supreme Court’s decision in U. S. v. Windsor allows each state to create its own definition of “same-sex marriage.” By attempting to create a one-size-fits-all definition and imposing it on all states via the new rule, the DOL would have forced employers to choose between complying with the FMLA or complying with state laws that define the term “spouse” differently.
Technically, the temporary injunction currently applies only in the states of Texas, Louisiana, Arkansas, and Nebraska. The DOL may decide to hold off on enforcement in the rest of the country pending a final ruling on the case, or it may go ahead with the new FMLA definition of spouse in the states that recognize same-sex marriages.
It has to be noted that this entire dispute could become moot this summer when the Supreme Court rules on the same-sex marriage cases now pending before it. Many watchers believe the Court will decide that the 14th Amendment requires states to license a marriage between same-sex couples. Others aren't so sure.
For now, however, in four of the 50 states, the FMLA still defines “spouse” according to the law of the state in which an employee resides, and the DOL’s would-be rule to the contrary remains down for the count. In those four states, that means the FMLA does not presently provide same-sex spousal leave rights if an employee resides in a state that does not recognize an employee’s same-sex marriage, even if that marriage was validly entered into in another jurisdiction.
We’ll let you know if and when something changes.
