DOL Same-Sex Spouses FMLA Leave Stalled in Four States

Thousands of U.S. workers in same-sex marriages will not be protected by the FMLA if they take time off to care for their same-sex spouse.

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One day before the Department of Labor’s (DOL) final rule would have revised the Family Medical Leave Act (FMLA) definition of ‘spouse’ to include same-sex partners, a Federal District Court granted a preliminary injunction  halting the revised definition.

What is a Preliminary Injunction?
A preliminary injunction is: “A court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act in order to preserve the status quo until a pending ruling or outcome…The purpose of a preliminary injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court’s ability to render a meaningful decision after a trial on the merits.”

Four states that uphold ‘Defense of Marriage’ legislation (Texas, Arkansas, Louisiana and Nebraska) joined the case against the DOL, and they claimed that the DOL’s proposed rule was:

“…inconsistent with Congress’ clear and unambiguous intention and this action exceeds the authority Congress delegated to the agency.”

The Court’s order found that the DOL’s rule might not survive a challenge based on the Federal Full Faith and Credit Statute (28 U.S.C.A. § 1738C), which says no state is required to abide by any federal action that would force a state to recognize a relationship between two people of the same sex as a marriage.

Revision of ‘Spouse’ under the FMLA

In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor. Soon after the DOL changed their definition of spouse under the FMLA, which allowed eligible employees to care for their same-sex spouse under the FMLA – if the employee resided in a state that recognizes same-sex marriage. Because the DOL rule was limited only to states that recognized same-sex marriage, states such as Texas were exempt from the FMLA rule change.

In the Final Rule, however, that was halted by the court injunction, the DOL proposed to remove that geographic limitation by replacing the phrase “state of residence” to “state of celebration”, thus forcing all states to allow FMLA leave to married same-sex workers.

What is the Family Medical Leave Act (FMLA)?
Under the U.S. Department of Labor, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

State of Texas v. United States of America and the Department of Labor

Texas does not recognize same-sex marriage and filed its lawsuit arguing that requiring states to follow the new FMLA rule would violate Section 2 of Defense of Marriage Act. Section 2, the Full Faith and Credit Statute, allows states to refuse to recognize same-sex marriages performed under the laws of other states, this section had been left intact in the Unites States v. Windsor.

Attorney General Ken Paxton issued a press release stating:

“No federal agency has the power to re-write the laws of Congress, and the Department of Labor’s regulatory attempt to redefine marriage in Texas infringes upon our state sovereignty and violates the U.S. Constitution. Furthermore, it would essentially strong-arm employers to choose to either violate federal regulations or state law. The federal judge rightly stopped this unconstitutional FMLA rule from taking effect, and we will continue to defend our sovereignty in this case to ensure that the Obama Administration’s effort to override our laws via federal rulemaking is permanently halted.”

Supreme Court to Rule on Same-Sex Marriages

The Supreme Court begins hearing the case of Obergefell v. Hodges on April 28, 2015. SCOTUS will decide on two critical questions that could render the injunction moot:

  1. Does the Fourteenth Amendment to the U.S. Constitution requires a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The U.S. has more than 70,000 married same-sex couples according to the Pew Research Center data from 2011.

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