On February 25, 2015, the U.S. Department of Labor announced an important change in the definition of spouse under the Family Medical Leave Act (FMLA). The new rule was to take effective on March 27, 2015. But on March 26, U.S. District Judge Reed O’Connor of Texas issued a temporary restraining order putting the kibosh on the rule change.
The FMLA covers employers with 50 or more employees within a 75 mile radius, and all state and local governmental employers. The states of Texas, Arkansas, Louisiana, and Nebraska sued the U.S. Department of Labor (DOL) to have the rule declared invalid. The case was filed in the U.S. District Court for the Northern District of Texas. All four states have laws that define marriage as being only between a man and a woman, thereby restricting the recognition of same-sex marriages. They argued the DOL lacked authority to revise the rule.
Under current law, same-sex couples are not necessarily entitled to FMLA leave in states not recognizing same sex marriage, because such couples would not legally constitute spouses within those states. The DOL proposed to revise its regulations issued pursuant to the FMLA so that same-sex couples, even in those states that don’t recognize same-sex marriages, would be eligible for FMLA leave so long as their marriage is recognized in the state in which they wed. This is called the “state of celebration” approach, and it promised to significantly increase the availability of FMLA leave nationwide.
The Texas federal court held that the DOL lacked authority to issue the rule change and enjoined the DOL from allowing its new rule to go into effect.
Where does this leave employers?
As of right now, same-sex couples are eligible for FMLA leave in states that recognize their marriages, but not in those states that don’t recognize same-sex marriages. In states not recognizing same-sex marriage, same-sex couples don’t have any legal entitlement to FMLA leave to care for each other.
Of course, regardless of state law, an employer’s policies are truly the touchstone in any FMLA analysis. In an audit or lawsuit, the DOL will apply either its own regulations or the employer’s own policies, depending upon which is more favorable to employees. And the FMLA is just a floor for employers, not a ceiling. Therefore, if employers in so-called “traditional marriage states” so desire, they can amend their policies to permit same-sex couples to use FMLA leave to care for one another. On the other hand, in view of the Texas federal court decision, they are not yet required to do so.
Employers who are in states recognizing same-sex marriage must continue to consider a same-sex spouse a spouse for purposes of the FMLA if the laws of the state in which the employer is doing business permit such unions.
When will clarity emerge?
The fight over the definition of spouse for purposes of the FMLA will likely be settled this summer when the U.S. Supreme Court issues its decision in Obergefell v. Hodges. This decision will answer two critical questions:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Assuming the Supreme Court holds that states must permit same-sex marriage, employers nationwide will need to conform their FMLA policies by providing that same-sex spouses qualify as spouses under the FMLA.
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