On March 16, we advised readers that in February, the Department of Labor had finalized a rule providing that workers in legal, same-sex marriages, regardless of where they live, would now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act to care for a spouse with a serious health condition. The final rule was to take effect on March 27. However, on March 26, the rule was preliminarily enjoined by a Texas federal district court.
DOL’s final rule change updated the regulatory definition of “spouse” in the Family and Medical Leave Act in keeping with the U.S. Supreme Court‘s ruling in United States v. Windsor. Under the final rule, an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.
The states of Texas, Arkansas, Louisiana and Nebraska sued DOL arguing that those states do not recognize same-sex marriages. The plaintiffs argued that the FMLA rule, by requiring state agencies to recognize employees’ same-sex marriages for FMLA purposes, violated those states’ own laws and constitutional provisions, which require that marriage be between one man and one woman. In its injunction, U.S. District Court Judge O’Connor said that the public has “an abiding interest” in protecting state laws from “federal encroachment.” In issuing its order, Judge O’Connor barred DOL from enforcing the rule pending a final ruling on the merits of the states’ claims. It is unclear whether DOL will attempt to enforce the law in states beyond the four plaintiff states.
The ruling is temporary, not final. The judge ruled that the plaintiffs had shown a substantial likelihood that they would prevail and that they would be irreparably harmed if the rule were allowed to go into effect. DOL has asked the court to reconsider its decision, and the oral argument on this request has been set for April 13.
Whatever the outcome of this rule, it may be moot depending on the Supreme Court’s decision in the four same-sex marriage cases it will decide this term. Stay tuned.