While the country awaits the official decision from the U.S. Supreme Court on same-sex marriage cases, many federal agencies have issued guidance on the effect of the Court’s earlier ruling in United States v. Windsor. In the Windsor case, the Court struck down the federal provision defining marriage as a union between a man and woman. Effectively, under federal law, validly married same-sex couples had equal protection under federal law as opposite sex couples.
Updating Law and Policy
In order to follow up with the Windsor ruling, the Department of Labor brought forth a notice of proposed rulemaking on June 27, 2014. The proposal’s focus was set on creating a significant revision to the FMLA that would redefine what it meant to be a spouse.
The modified definition essentially states that any employee in a legal same-sex marriage would be entitled to take FMLA leave, ignoring the law of the “state of residence.” Instead, the definition would focus on the “state of celebration,” or the state where the marriage occurred. In other words, if a same-sex couple were legally married in California and moved to Tennessee, they would still be able to receive FMLA benefits.
On February 25, 2015, a Final Rule was issued which firmly established these changes into the act. The revisions were to go into effect for all states on March 27 this year. On March 26, 2015, Texas, along with Arkansas, Louisiana, and Nebraska, filed a Complaint for Declaratory and Injunctive Relief and Application for Temporary Restraining Order. In simpler terms, Texas argued that the Final Rule should not be enforced onto the four states since they did not recognize same-sex marriages.
The court granted a preliminary injunction and concluded that the Department of Labor had exceeded its authority. By changing the definition of spouse, it would force employers to comply with either the FMLA or state laws that prohibit same-sex marriages. As a result, the new changes made to the FMLA do not apply in these four states.
How are Employers Affected?
For employers outside of these four states, they should conduct a thorough review FMLA policies for compliance with the new definition of spouse. Employers should also ensure that all HR personnel, managers, and supervisors know of this revised definition.
