A federal judge in Texas has temporarily put on hold the new rule expanding the definition of “spouse” under the Family and Medical Leave Act (FMLA). Set to go into effect today, the final rule changes recognition of same-sex and common law marriages from the state of residence to the state of celebration. 

States Argue New FMLA “Spouse” Rule Violates Full Faith and Credit Statute 

Four states that do not recognize same-sex marriages challenged the Department of Labor’s revised definition of “spouse” which would require employers in all states to extend FMLA leave for care of same-sex or common law spouses as long as the marriage was legal in the state in which it took place. Texas, Louisiana, Arkansas and Nebraska filed suit in federal court seeking to block this revised rule, arguing that compliance with the federal rule results in violation of the state’s prohibition on recognition of same-sex marriages. 

The states claim that imposing the new FMLA rule violates the Full Faith and Credit Statute which provides that no state “shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” This provision, section two of the federal Defense of Marriage Act (DOMA), was not at issue in the 2014 Supreme Court case of United States v. Windsor, which struck down the definition of marriage as between one man and one woman. Because that section still remains in effect, these four states assert that it prevents enforcement of the new FMLA rule requiring them to recognize same-sex marriages legally performed and recognized in other states. 

FMLA Final Rule Temporarily Blocked 

Finding that the states had shown a substantial likelihood that they would prevail in their arguments, Texas federal judge Reed O’Connor ordered that the Department of Labor stay application of its FMLA final rule pending a full determination of the matter. The judge wrote that he will hold a hearing on the issue on April 13th, if the parties so request. He also explained that the Supreme Court may ultimately resolve the issue when it decides the constitutionality of state law bans on same-sex marriages in theObergefell v. Hodges case, which will be decided before July. 

Next Steps 

A great deal of uncertainty surrounds this final rule with additional court rulings expected in the coming months. In the meantime, if you are covered by the FMLA, prepare for the changes proposed in the expanded definition of “spouse” so that if the stay on the rule’s application is lifted, you will be prepared to comply.Stay tuned for further developments.