⊕ LEGAL: FMLA rule defining ‘spouse’ to include same-sex couples enjoined by court

Jeff Jones
Jeff Jones.

At least for the time being, the U.S. Department of Labor (DOL) has been enjoined by a federal court in Texas from enforcing a new rule under the Family and Medical Leave Act (FMLA) that would require employers to provide FMLA leave to employees for the serious health conditions of their same-sex spouses. The DOL rule was to take effect March 27. However, on March 26, the U.S. District Court for the Northern District of Texas held that the DOL could not enforce this rule changing the prior definition of “spouse” under the FMLA.

Under the new DOL rule, an employee can take FMLA leave for a same-sex spouse’s serious health condition even in states (like Tennessee) that do not currently recognize same-sex marriages, if their marriage occurred in a state that recognizes same-sex marriage. The states of Texas, Arkansas, Louisiana and Nebraska filed suit in federal court asking the court to strike down the DOL’s new rule. According to them, the new rule would have required state agencies to violate either their own state laws or the DOL federal rule.

The Texas federal district court barred the DOL from enforcing the new “spouse” rule pending a later decision on the merits of the states’ claims. The court’s ruling applies to the DOL in the states of Texas, Arkansas, Louisiana and Nebraska.

At the time of this alert, it is not clear whether the DOL will still enforce the new rule in the other 46 states. If it does so, this will create varying legal standards among the states on whether employers located in those states must give FMLA benefits to same-sex married couples. It may be prudent for employers to assume that the new DOL rule will apply in other states (including Tennessee) unless and until the DOL announces otherwise.

The entire issue may become moot depending on the U.S. Supreme Court’s ruling in four same-sex marriage cases that will be decided in this term, which ends in June.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

Liz Engel is the editor of the Upper Cumberland Business Journal. She can be reached at liz@ucbjournal.com

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