On Feb. 25, 2015, the U.S. Department of Labor (DOL) promulgated a final rule that, effective March 27, modified the federal Family and Medical Leave Act’s (FMLA) definition of “spouse” to extend the FMLA’s protections to same-sex spouses whose marriages were valid in the state in which they were celebrated. See 79 Fed. Reg. 36454 (June 27, 2014); 29 C.F.R. § 825.102 (Final Rule). For details about this Final Rule and its effect on employers, see our prior article, FMLA Modified to Protect Same-Sex Spouses Regardless of State of Residence.

Several states, however, recently obtained a preliminary injunction, staying enforcement of the Final Rule pending a final decision on whether the DOL exceeded its authority in enacting the new regulations. In Texas v. United States, Texas, Arkansas, Louisiana and Nebraska filed suit in the U.S. District Court for the Northern District of Texas alleging that the Final Rule is invalid because, among other reasons, the Final Rule’s definition of marriage conflicts with:

  1. the FMLA’s statutory definition of marriage, and therefore exceeds the authority delegated from Congress to the DOL;
  2. the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738C, which provides that states are not required to give effect to same-sex marriage (or benefits arising from same-sex marriage) recognized in other states; and
  3. state laws regarding marriage, and thus cannot be valid because Congress did not intend to preempt the states’ definitions of marriage.

The court held that the states were likely to succeed on the merits in all three challenges. The court further found that, absent an injunction, the states would suffer irreparable harm because the Final Rule would require state agencies to choose between violating the Final Rule and violating state law. Notably in this regard, all four plaintiff states had statutory and/or constitutional prohibitions against recognizing, or giving effect to legal protections or benefits asserted as a result of, same-sex marriages entered into in other states. See Texas Family Code § 6.204(c)(2); Ark. Const. amend. 83, § 2; La. Civ. Code Ann. art. 3520(B); Neb. Const. art. I, § 29. Moreover, while recognizing that the threatened injury to both parties was “serious,” the court held that the states’ interests in preventing enforcement were not outweighed by the potential harm caused by delaying the extension of FMLA benefits to same-sex couples. Finally, the court held that public interest in “preserving the rule of law and enforcing the states’ duly enacted laws from federal encroachment” weighed against enforcement of the Final Rule. Accordingly, the court enjoined enforcement of the Final Rule pending a final decision on the merits.

In light of the court’s decision, employers in Texas, Arkansas, Louisiana and Nebraska are not presently required to give effect to the DOL’s revised definition of “spouse,” and instead can continue to determine FMLA eligibility based on the laws of the employee’s state of residence. Although the court noted that its order “does not prohibit employers from granting leave to those who request leave to care for a loved one,” the state statutory and constitutional provisions cited by the court appear to prohibit employers from doing so.

The court noted that guidance on the interplay between conflicting state and federal definitions of marriage is forthcoming, as the U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States are slated to take up this issue in De Leon v. Abbott, No. 14-50196 (5th Cir.), and Obergefell v. Hodges, 135 S. Ct. 1039 (2015), respectively. The Supreme Court heard argument in Obergefell on April 28, 2015, which presents the questions of whether the Fourteenth Amendment requires a state to license same-sex marriages and/or recognize out-of-state same-sex marriages that were valid where celebrated.