A federal judge in Texas has
granted a temporary injunction preventing the DOL from enforcing its
new rule under the Family and Medical Leave Act ("FMLA")
that would extend FMLA protections to same-sex couples. The
injunction resulted from a lawsuit filed by the state of Texas, and
joined by the states of Arkansas, Louisiana and Nebraska, in response
to the DOL's expansion of the definition of "spouse" under
The FMLA requires, among other things, that employers grant leave for
workers to provide care for sick family members, including spouses.
FMLA regulations originally provided that the term "spouse"
was to be defined according to the law of the state where the
employee resides rather than the jurisdiction where he or she was
married. This rule became particularly significant after the Supreme
Court's decision in United States v. Windsor, which struck
down Section 3 of the Defense of Marriage Act ("DOMA").
(Section 3 of DOMA restricted the definition of marriage for purposes
of federal law to opposite-sex marriages.) The Court's decision in Windsor
served to extend FMLA rights to same-sex married couples, but only if
they resided in a state that recognized same-sex marriage.
Following Windsor, DOL adopted a
"state of celebration" rule, under which spousal status for
FMLA purposes is determined by the law of the state where the
employee was married (rather than the state where the employee
resides). Thus, same-sex couples who are married in a state that
recognizes same-sex marriage are married for FMLA purposes, even if
the state where they reside does not recognize the marriage.
Legal Proceedings. The plaintiffs argued that the DOL's final rule
should be enjoined in states that do not recognize same-sex
marriages. Section 2 of DOMA, which survived the Supreme Court's
scrutiny in Windsor, provides that states may refuse to
recognize same-sex marriages performed under the laws of other
The federal district court addressed the issue of
whether DOL exceeded its jurisdiction by issuing a final rule that
requires the plaintiff states to violate state laws prohibiting the
recognition of same-sex marriages from other jurisdictions. According
to the court, DOL's rule on same-sex marriages appears to improperly
pre-empt state laws forbidding the recognition of same-sex marriages.
The plaintiffs also claimed that the DOL rule
conflicts with the statutory definition in the FMLA and, therefore,
should be found invalid. The court determined that based upon the
original meaning and subsequent laws, Congress intended to give
marriage its traditional meaning and preserve a state's ability to
define marriage without being obligated by another jurisdiction's
The court ultimately decided that the plaintiffs
were likely to show the DOL's final rule was contrary to the FMLA and
granted a preliminary injunction to enjoin the DOL from enforcing the
final rule in the four plaintiff states.
The preliminary injunction is effective in only the four plaintiff
states involved in the lawsuit. Thus, employers outside these states
are advised to follow the DOL's new final "state of
celebration" rule. However, it appears that, for now, employers
doing business in Texas, Arkansas, Louisiana and Nebraska may
continue to follow the old "state of residence" rule.
Also, it should be noted that the Supreme Court
is in the process of determining whether states may ban same-sex
marriages without violating the U.S. Constitution. Its decision in
this matter may negate the rationale behind the injunction issued in