Bookmark and Share


New FMLA Rule For Same-Sex Couples Put On Hold By Federal Court

[April 15, 2015]  The U.S. Department of Labor (“DOL”) recently announced a new rule under the Family and Medical Leave Act (“FMLA”) – which a federal judge has just enjoined. Specifically, the new rule would extend the protections of the FMLA to married same-sex couples irrespective of whether they live in a state that recognizes their marriage, effective March 27, 2015.

However, on March 26, 2015, the day before the effective date, a U.S. District Court judge in Texas issued a preliminary injunction enjoining the DOL from implementing the rule. Thus, the new rule remains on hold until further notice.

Nonetheless, it seems likely that the FMLA’s reach will eventually be extended in the manner proposed in the new DOL rule.  Accordingly, employers in all states would be wise to review the rule in preparation for future compliance.

Background: The Windsor Decision

The DOL’s new FMLA rule addresses an issue that has been in play since the Supreme Court’s 2013 U.S. v. Windsor decision. In Windsor, the Court struck down as unconstitutional the provision of the Defense of Marriage Act (“DOMA”) that defined marriage, for purposes of federal law, as a union between a man and a woman and prohibited the federal government from recognizing marriages between same-sex couples. The Court found this provision of DOMA unconstitutional on the basis that it failed to respect states’ rights to choose to give equal recognition to same-sex and opposite-sex marriages.

New FMLA Rule

Prior to the Windsor decision, employees had no right to take FMLA leave to care for same-sex spouses. The Windsor ruling made FMLA rights available for the first time to same-sex couples, but only to those couples residing in states that recognized their marriages.

The DOL’s new rule would resolve this disparity by expanding the FMLA’s protections to couples whose marriages are recognized under the laws of any state. Thus, a same-sex couple’s state of residence would no longer come into play in determining FMLA eligibility.

Under the DOL’s new rule, employees meeting the FMLA’s other eligibility criteria, regardless of their state of residence, would be permitted to take leave:

  • To care for a same-sex spouse with a serious health condition;
  • For covered reasons relating to a same-sex spouse’s military service;
  • To care for a child of an employee’s same-sex spouse, regardless of whether the employee provides day-to-day care or financial support for the child; and
  • To care for a same-sex spouse of an employee’s parent, regardless of whether the spouse ever held an active parenting role in relation to the employee.

In an accompanying list of “Frequently Asked Questions,” the DOL has stated that the new rule would give fullest effect to the purposes of the FMLA and, in addition, reduce administrative burdens on employers that operate in more than one state or have employees who move between states.

Court Injunction And Potential Implications

After the DOL announced the new rule, the attorneys general of Texas, Louisiana, Arkansas, and Nebraska filed suit in federal court, seeking to block the rule from going into effect. Subsequently, U.S. District Judge Reed O’Connor granted the plaintiffs’ motion for a preliminary injunction, concluding that the plaintiffs had shown a likelihood of prevailing on their arguments that Congress intended the FMLA to be limited to opposite-sex marriages and that the DOL had exceeded its authority in promulgating the new rule.

In the wake of the court’s decision, the fate of the new rule is unclear. Given that the FMLA was enacted in 1993 – before any state had legalized same-sex marriage – Judge O’Connor’s conclusion as to Congress’s intentions at the time may well be correct.

However, the political and legal landscapes have shifted dramatically in the 22 years since the FMLA was enacted. A number of states have adopted legislation recognizing same-sex marriage, and courts in many other states have found laws restricting marriage to opposite-sex spouses to be unconstitutional. If the DOL asks a federal appellate court to overturn the injunction, the appellate court will be considering the matter in the context of these recent developments.

Further, many observers expect that, in deciding another DOMA case before it later this year, the Supreme Court will recognize a fundamental right to same-sex marriage under the U.S. Constitution. In that event, the DOL’s new FMLA rule would, effectively, be put into effect through the Court’s ruling.

Recommendations For Employers

In sum, while the new FMLA rule is on hold for the moment, there is good reason to anticipate that the statute’s reach will ultimately be extended to same-sex married couples regardless of where they live. Accordingly, we recommend that employers:

  • Carefully review the new FMLA rule and the “Frequently Asked Questions” that accompany it;
  • If and when the rule ultimately goes into effect, review and, as necessary, revise their policies and forms relating to FMLA leave, in conjunction with experienced employment counsel; and
  • Closely monitor further developments on this issue.


Please feel free to contact us if you have any questions about the proposed new FMLA rule or need assistance with any related compliance or litigation matters.