The new DOL same-sex rule that took effect this week under the Family and Medical Leave Act has been temporarily halted from enforcement. On March 26, the United States District Court in Dallas issued a preliminary injunction against application of the new rule.
Texas, Arkansas, Louisiana and Nebraska filed suit seeking the injunction. The States challenged the new rule, which utilizes a “state of celebration” rather than state of residence as the determination of whether the same sex marriage is legal. Texas does not recognize same-sex marriages, yet under the new rule, a same sex marriage recognized in the state where it occurred would be required to be recognized in Texas for purpose of the FLMA.
The issue is also pending in the United States Supreme Court, so this preliminary ruling will not be the final word on the subject. That decision will be announced before the end of the Court’s current session. In that case, the Supreme Court agreed to consolidate four cases brought by Kentucky, Michigan, Ohio and Tennessee to review the issue of whether a same=sex marriage must be recognized in states other than the state in which the marriage occurred.
As a result, multi-state employers are left to sort out these issues. At least in the four states in the Suit, employers are allowed to continue to follow the old FMLA rule based on the state of employment.