The Family and Medical Leave Act (“FMLA”) entitles eligible employees unpaid, job-protected leave to care for a child, parent, or spouse. In light of recent Supreme Court decisions addressing same-sex marriages, the Department of Labor (“DOL”) has continued to update its definition of “spouse.” Accordingly, Texas employers should take note of the ongoing changes to the definition of “spouse” and to whom FMLA leave is afforded.

2013 Definition of Spouse

In 2013, the United States Supreme Court issued its decision in United States v. Windsor, wherein the Court held that Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, was unconstitutional.

In response to the Windsor decision, the DOL announced a change to the definition of “spouse” under the FMLA to allow eligible employees FMLA leave to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage. Because the DOL’s limitation to only those states that recognize same-sex marriage, states such as Texas, who do not recognize same-sex-marriage, are exempt from the 2013 FMLA definition of “spouse” and do not have to provide FMLA leave to same-sex spouses.

2015 Definition of Spouse

In February of 2015, the Department of Labor issued a Final Rule (the “Final Rule”) revising the definition of “spouse” under the FMLA. Under the Final Rule the DOL’s definition of “spouse” changed from a “state of residence” to a “state of marriage” rule, where same-sex couples are afforded FMLA leave so long as the state in which they were married recognizes same-sex marriage, not the state in which they reside. Thus the law of the state in which the same-sex couples reside is ignored. As a result, regardless of where same-sex couples live, eligible employees are afforded FMLA leave so long as they were married in a state that recognizes same-sex marriage.

FMLA Leave for Same-Sex Spouses in Texas

This Final Rule is not yet in effect in Texas, however. In March of 2015, in State of Texas v. United States of America et al., case number 7:15-cv-00056 filed in the U.S. District Court for the Northern District of Texas, the state Attorney Generals for Texas, Nebraska, Louisiana and Arkansas filed a preliminary injunction to block the enactment of the Final Rule. The preliminary injunction was granted, but the case is still pending.

For the time being, Texas employers are not required to give FMLA leave to same-sex spouses. However, that may well change as State of Texas v. United States of America et al works its way through the courts. It is unclear at this point how the case will be decided, but it will certainly have a great impact on Texas employers.