By: Karen L. Piper
On Thursday, March 26, 2015, one day before the new Family and Medical Leave Act (FMLA) rule requiring employers in every state to treat same-sex spouses the same as opposite sex spouses for all purposes under the FMLA, a Texas federal district court ordered the Department of Labor (DOL) not to enforce the rule.
The FMLA requires employers to grant leaves of absence to employees for several reasons related to the employee’s spouse, e.g., to care for a spouse with a serious health condition. The DOL has long defined the term “spouse” to include same-sex spouses, if the state in which the employee lives recognizes same-sex marriage.
In 2013, the U.S. Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA), which defined “marriage” as “only a legal union between one man and one woman as husband and wife” was unconstitutional. United States v. Windsor (2013). The Windsor opinion did not rule on section 2 of DOMA, which says no state which, itself, does not recognize same-sex marriage is required to give effect to a same-sex marriage entered into in another state where same-sex marriage is recognized.
In July 2014, the DOL announced that it would be expanding its definition of the term “spouse” to include same-sex (and common law) spouses, if the employee’s marriage was legal in the state where the marriage was entered, even in states, such as Michigan, which do not recognize same–sex marriage. On February 25, 2015, following a notice-and-comment period, the DOL issued its new rule. It requires employers in every state to treat same-sex spouses the same as opposite sex spouses for all purposes under the FMLA, if the marriage was legal in the state in which the employee was married. The revised definition was scheduled to take effect on March 27, 2015.
On March 18, 2015, the state of Texas, joined by Arkansas, Louisiana and Nebraska, filed a lawsuit in federal district court in Texas to prevent application of the new rule to these states, as employers. The states claimed the new rule requires them to violate their own state laws which prohibit recognition of same-sex marriage. The states asserted that Congress and the DOL lacked authority to require them to do so. They asked the court to enjoin the DOL from enforcing the new rule.
The Texas court agreed. It noted that the question whether Congress has such authority is currently pending before the U.S. Supreme Court in several cases, including a Michigan case — DeBoer v Snyder — in which the Sixth Circuit Court of Appeals ruled that Michigan’s ban on same sex marriage was not unconstitutional. Oral argument on the DeBoer case is scheduled for April 28, 2015 and the Supreme Court is expected to decide the case by June 30, 2015.
The Texas court decided that the DOL should be precluded from enforcing its new rule and issued an injunction. The court offered to hear further arguments on the issue on April 13, 2015.
The scope of the injunction is unclear. The injunction clearly applies to DOL enforcement of the new rule against the four states which brought the lawsuit. It is not clear whether the injunction applies to other states or to other private employers.
On March 31, 2015 the DOL requested a hearing on the injunction on April 13. In its request, the DOL stated its position that the injunction “applies only to the state governments of the states of Texas, Arkansas, Louisiana, and Nebraska” but DOL stands ready to address the scope of the injunction at the April 13 hearing.
This article was written by Karen L. Piper who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or firstname.lastname@example.org.
Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee. April 2015.