The hotly contested debate of marriage equality is reaching a boiling point as the United States Supreme Court begins to hear opening arguments. Meanwhile, dozens of prior marriage equality decisions issued by lower courts hang in the balance, including a temporary enjoinment of the Department of Labor's (DOL's) same-sex spouse rule under the Family Medical Leave Act (FMLA). So what exactly does the temporary injunction mean to employers and for how long will it mean anything?
On March 26, 2015, the U.S. District Court for the Northern District of Texas issued the temporary injunction in Texas v. United States of America, forbidding the application of the DOL's same-sex spouse rule under the FMLA. Texas, Arkansas, Louisiana, and Nebraska sought the preliminary injunction after the DOL released a rule changing the definition of "spouse" for purposes of determining eligibility for FMLA spousal leave.
Prior to the new rule, "spouse" was defined under the state of residence. If the state of residence did not recognize same-sex marriage, end of story—the employee was not considered a "spouse" and therefore ineligible for FMLA benefits. So, for example, a covered employer in Texas could refuse benefits to an employee that was legally married in New York because Texas does not recognize same-sex marriage under its constitution.
But under the DOL's new rule, which becomes effective on March 27, 2015, "spouse" is defined by the by "the law of the jurisdiction in which the marriage was entered into." This definition essentially requires every state to recognize same-sex marriages for FMLA purposes if the marriage was entered into in a jurisdiction recognizing same-sex marriages. Thus, in the previous example, it would not matter that Texas' constitution expressly prohibits recognition of same-sex marriage—the covered employer would be required to provide benefits to the employee because the marriage was valid in New York.
Faced with a rule that stands in stark contrast with certain states' laws and beliefs, it was only a matter of time before the new rule was challenged on federalism principles and traditional concepts of marriage. Wait...these arguments sound familiar, right? That is because these arguments are a mirror image of the issues that are currently pending in front of the Supreme Court. Thus, it is entirely possible that the issue underlying Texas v. United States of America will become irrelevant as a result of the Supreme Court's ruling.
Until the Supreme Court issues its ruling—or, in the unlikely event Texas v. United States of America is disposed of prior to the Supreme Court's ruling, until final judgment is entered—covered employers in these states should follow the old rule and define "spouse" by the state of residence in determining whether to provide eligible employees with FMLA benefits. Regardless of your beliefs, let us all hope for a speedy resolution so this temporary uncertainty goes away.
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