FMLA’s New Definition of “Spouse” Halted in Four States

The Department of Labor’s revised definition of “spouse” under the FMLA was recently struck down in Texas. On March 26, 2015, in Texas v. United States, the United States District Court for the Northern District of Texas granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the Department of Labor’s Final Rule that revised the regulatory definition of “spouse” to include same-sex partners under the Federal Family and Medical Leave Act (“FMLA”).

After the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) in United States v. Windsor, which defined spouse under federal law, as a person of the opposite sex, President Obama called for a review of all relevant federal statutes to implement the decision. Under the then-existing FMLA regulation defining spouse, eligible employees in same-sex marriages recognized in their “state of residence” could take FMLA leave to care for a same-sex spouse with a serious health condition. However, this definition did not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lived in a state that did not recognize same-sex marriage.

On February 25, 2015, in order to provide FMLA rights to all legally married same-sex couples consistent with the Windsor decision, the Department of Labor issued a Final Rule revising the definition of spouse under the FMLA. Essentially, the Rule provided that any eligible employee who is in a legal same-sex marriage can take FMLA leave to care for his or her spouse, regardless of the state in which that employee resides. To determine who could be considered a spouse, the revised definition looks to the law in the “state of celebration,” that is, the jurisdiction in which the marriage was entered into, instead of the law of the state in which the employee resides. The Rule was to be effective March 27, 2015.

On March 18, 2015, the State of Texas filed a Complaint for Declaratory and Injunctive Relief and Application for Temporary Restraining Order, arguing that the Final Rule should be enjoined because Texas law does not recognize same-sex marriages. On March 25, 2015, Texas amended its Complaint to add Arkansas, Louisiana and Nebraska as plaintiffs. The other plaintiff states have similar restrictions on state recognition of same-sex marriages. The court granted the plaintiffs’ request for a preliminary injunction, holding that Congress intended to preserve a state’s ability to define marriage without being obligated under the laws of another jurisdiction which may define it differently. The court concluded that the DOL exceeded its authority in changing the definition because it forced employers to choose between complying with the FMLA and with other certain state laws prohibiting the recognition of same-sex marriages.

The DOL’s Final Rule has been temporarily stayed in Texas, Arkansas, Louisiana and Nebraska. While the preliminary injunction remains in effect, the DOL cannot take any action to enforce the “state of celebration” rule in those four states.

What is the bottom line for employers? Employers outside of Texas, Arkansas, Louisiana and Nebraska should review their FMLA policy to ensure that it includes the new definition of “spouse.” Employers should also make sure that human resources personnel, supervisors and managers are aware of the new definition and its impact on employees requesting leave under the FMLA. Employers doing business in Texas, Arkansas, Louisiana and Nebraska should monitor the developments in Texas v. United States to determine if the new definition of spouse will be implemented in those states.




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