The U.S. Department of Labor (DOL) issued a final rule, effective March 27, 2015, changing the definition of spouse for purposes of same-sex spousal leave under the FMLA. The former rule, a “place of residence” rule, stated that an employer was required to provide same-sex spousal leave to qualified employees under the FMLA only if the marriage was enforceable in the employee’s state of residence. The new “place of celebration” rule states that same-sex spousal leave must be provided to qualified employees if the marriage is valid in the place where the marriage is performed. Therefore, under the new rule, if an employee is married in California (where same sex marriage is valid), but resides in Kentucky (where same sex marriage is not valid), the Kentucky employer must provide spousal leave to qualified employees.
Texas, joined by several other states, sued the DOL over the new rule and sought a preliminary injunction in federal court enjoining its enforcement. Texas argued that the new rule infringed upon the state’s right to decide whether same-sex marriage is legally enforceable in Texas and exceeded the scope of the agency’s authority.
The Texas federal court held that Texas had a likelihood of success on the merits. The result of the ruling is that the DOL may not enforce the new rule in Texas, Arkansas, Louisiana and Nebraska.
Meanwhile, this term the U.S. Supreme Court will decide whether it is constitutional for states to: 1) prohibit same sex marriages; and 2) refuse to recognize same sex marriages that were performed in states where they are valid. The Court’s rulings on these issues could alter the Texas court’s injunction and shed some light on whether the new definition of spouse will be enforceable.
The injunction granted by the Texas federal court only applies to Texas, Arkansas, Louisiana and Nebraska, which means that if you live in any of the remaining states, the DOL rule is enforceable.