A new Department of Labor rule defining “spouse” for purposes of the Family and Medical Leave Act (“FMLA”) was to take effect March 27, 2015, but on March 26, a federal judge in Texas granted a preliminary injunction staying implementation of the rule temporarily. The Attorneys General for Texas, Arkansas, Louisiana and Nebraska (states which do not recognize same-sex marriages) challenged the Department of Labor’s new rule, arguing that it violated the federal Full Faith and Credit provision of the Defense of Marriage Act, which says that no state is required to recognize another state’s “public act, record, or judicial proceeding . . . respecting a relationship between persons of the same sex that is treated as a marriage . . . .” The Attorneys General argued that by requiring their states to recognize same-sex marriages entered into in other states, the Department of Labor’s new FMLA rule violated the Full Faith provision.
The Family and Medical Leave Act (“FMLA”) requires employers with 50 or more employees to provide unpaid, job-protected leave to eligible employees. Eligible employees are entitled to twelve workweeks of leave in a 12-month period for certain family or medical reasons, including, for example, childbirth, adoption, the employee’s own serious health condition or to care for the employee’s spouse, child or parent who has a serious health condition. The Act provides additional leave benefits in certain situations for military caregivers when an employee’s spouse, son, daughter, or parent serves in the military. Currently, FMLA protections are extended to same-sex spouses only if the employee resides in a state where same-sex marriages are legal.
The Department of Labor’s new rule, which has been placed on hold, defines “spouse” for purposes of the Family and Medical Leave Act as follows:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:
(1) Was entered into in a State that recognizes such marriages; or
(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
The new rule also provides FMLA protection for spouses in common law marriages if the marriage was entered into in a state that recognizes common law marriages.
So, what is next? Only time will tell. This is a time of uncertainty for employers and employees as the Department of Labor and the EEOC push to extend the reach of various employment laws, and courts place some limitations on those efforts.