DOL Will Enforce FMLA Same-Sex Spouse Rule Where Not Enjoined

By Cris Naser

Last month, we advised readers that a Texas federal district court had enjoined the Department of Labor from enforcing its FMLA same-sex spouse rule in Texas, Arkansas, Louisiana and Nebraska. 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.

DOL, in a court filing, has now indicated that it will enforce its rule except in the four states where it is subject to the federal district court injunction. Whatever the outcome of this court case, it may be moot depending on the Supreme Court’s decision in the four same-sex cases it will decide this term.