• Update to New Rule Expanding Coverage under the FMLA to Same-Sex Married Couples - Court Blocks Implementation of New Rule
  • May 13, 2015 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
  • As we previously reported (Federal Government Extends FMLA Rights to More Same-Sex Married Couples ), the Department of Labor ("DOL") recently amended its long-standing rule and expanded coverage under the Family Medical Leave Act ("FMLA") to include protections for same-sex married couples regardless of where they reside, so long as the state where the same-sex couple was married recognizes the marriage.

    The Lawsuit and Court's Injunction

    In response to that new rule, a group of state attorneys general filed a lawsuit against the DOL to block implementation of the new rule, claiming it would violate their state's sovereignty. Attorneys general from four states, Texas, Arkansas, Louisiana, and Nebraska all joined the lawsuit, arguing that their state does not recognize same-sex marriages, and as such, the DOL's new rule would put employers located in those states into the position of choosing between breaking federal or state laws.

    In response to the claims raised, the Court issued a preliminary injunction. This means that the DOL's new rule will not go into effect in the states of Texas, Arkansas, Louisiana, and Nebraska until the litigation is resolved. The case will likely make its way to the Supreme Court who will ultimately resolve the issue for all states. The court's opinion was unclear as to whether it is limited to the four states mentioned above or applies to other states that do not recognize same-sex marriages.

    What this Means for Employers?

    The new DOL rule was scheduled to go into effect March 27, 2015. However, in light of the injunction, the new rule will not go into effect at this time for those states involved in the litigation and may potentially apply to all other states that do not recognize same-sex marriages. This means that employers in those states are permitted to utilize the prior rule ("state of residence") for determining who is afforded FMLA protection and consequently, many same-sex married couples will not be afforded the rights and protections of the FMLA if they reside in a state which does not recognize same-sex marriages.

    We will continue to keep you apprized on the status of this litigation and its impact on an employer's rights and obligations under the FMLA.