On March 26, the U.S. Department of Labor’s (DOL) recently announced change to federal regulations under the Family and Medical Leave Act (FMLA) that would expand the definition of spouse to include same sex marriages was halted by a federal judge in Texas. The revised regulations were scheduled to take effect on March 27. Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas granted a request for preliminary injunction as requested by attorneys general for Texas, Arkansas, Louisiana, and Nebraska. The states argued that the final rule unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages. While the preliminary injunction remains in effect, the rule will be enforced in the other 46 state. DOL revised the regulations in response to the U.S. Supreme Court’s ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.
The regulations were to update the FMLA’s definition of spouse so that an eligible employee in a legal same-sex marriage would be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Currently, the regulatory definition of spouse does not include same-sex spouses if an employee resides in a state that does not recognize the employee’s same-sex marriage. Under the revised rule, eligibility for federal FMLA protections was based on the law of the place where the marriage commenced. This “place of celebration” provision was to allow 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.
AGC will continue to monitor the outcome of this case and will provide updates to members as they become available.