We previously discussed the Department of Labor’s final rule that extended Family and Medical Leave Act protections to same-sex married couples. That rule was to apply regardless of the couple’s state of residence. But same-sex couples in Texas, Arkansas, Louisiana, and Nebraska will have to wait to enjoy the same benefits provided to heterosexual couples.
The DOL’s rule would enable employees in legal same-sex marriages to take job-protected leave under the Family and Medical Leave Act (FMLA) to care for a seriously ill spouse even if the state where they live doesn’t recognize same-sex marriages.
Challenge to Extending FMLA to Same-Sex Couples
On March 26, 2015 Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas granted a request for a preliminary injunction brought by the Texas attorney general’s office and joined by state attorneys general in Arkansas, Louisiana and Nebraska ordering those final rules to be put on hold. See order in Texas v. United States (3/26/15) (PDF). The Texas judge framed the issue as whether the Department of Labor (DOL) exceeded its jurisdiction by promulgating a rule that required states to violate the federal full faith and credit statute and state laws that prohibit recognition of same-sex marriages.
The states argued that the DOL final rule (scheduled to take effect March 27, 2015) unlawfully interferes with state laws that prohibit same-sex marriage and bar recognition of out-of-state same-sex marriages. These states further argued that the DOL’s rule is contrary to the full faith and credit statute under the U.S. Constitution, impermissibly abrogates state sovereign immunity, and wrongfully preempt state laws that limit recognition of out-of-state marriages to opposite-sex unions.
In response to the lawsuit, the DOL responded to the claims that “[t]he Final Rule impacts States only in their capacity as employers and merely requires them to provide unpaid FMLA leave to eligible employees based on a federal definition of spouse.”
The Texas court in granting the injunctive relief sided against the DOL. In doing so, the Court reasoned the FMLA defines “spouse” as “a husband or wife” and currently, married same-sex couples can only be considered spouses under FMLA regulations if they reside in a state that recognizes same-sex marriage. But the DOL’s final rule changes the definition of spouse from a “state of residence” rule to a “place of celebration” rule that looks to the law of the place where the marriage was performed. Accordingly, the court reasoned, it would extend FMLA rights to same-sex married couples even if they reside in a state that doesn’t recognize same-sex marriages.
The Texas court further concluded that the full faith and credit law expressly reserves to the states the right to refuse to recognize same-sex marriages performed under the laws of other states and federal agencies cannot promulgate rules that conflict with federal law. Accordingly, the court ruled that the states are substantially likely to succeed on the merits of their claims and, therefore, granted the injunctive relief.
In all likelihood (hopefully), this decision will be a temporary and small victory for the states opposing the extension of FMLA rights to same-sex couples. This is because the U.S. Supreme Court is scheduled to decide the case Obergefell v. Hodges, U.S., No. 14-556, (scheduled for oral arguments on April 28, 2015), which has the potential to decide the issue of nationwide marriage equality or – minimally speaking – whether 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?
For more information about complying with the Family Medical Leave Act or other federal and Michigan employment laws, contact attorney Jason Shinn. Mr. Shinn has been practicing in the areas of employment law since 2001, including same-sex issues first arising under civil union laws. Since that time, Mr. Shinn frequently consults with companies and employees about employment legal issues unique to employees in same-sex relationships.