A few weeks ago, we told you that the U.S. Department of Labor (“DOL”) issued a Final Rule that was to be effective on March 27, and would have allowed an employee to take FMLA leave to care for a same-sex spouse regardless of whether the employee lived in a state that legally recognizes their marital status.  Well, hold the phone.

As the Rule was set to go into effect, a Texas federal judge granted a preliminary injunction to a group of several state Attorneys General who brought suit to stop enforcement of the Rule.  According to that judge, the DOL exceeded its authority in changing the Rule because it forced employers to choose between complying with the FMLA and complying with certain state laws which define the term spouse differently.

Put another way, the Court agreed that, since the definition of same-sex marriage is up to individual states following the United States Supreme Court’s decision in United States v. Windsor to strike down the Defense of Marriage Act, the DOL impermissibly exceeded its authority in promulgating the Final Rule to implement its own different definition of spouse.  Therefore, in light of the Texas Court’s decision, the DOL’s Final Rule has been at least temporarily stayed, in the four states that brought the challenge — Texas, Arkansas, Louisiana and Nebraska. To make things easier and simple for multi-state employers, the DOL has stated that it intends to enforce the new definition in all other states.

Certainly, we will keep you posted on whether the DOL’s rule ultimately comes back around in some form or fashion in Texas, Arkansas, Louisiana and Nebraska.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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