In an “extraordinary remedy” the federal district court for the states of Texas, Arkansas, Louisiana and Nebraska issued a preliminary injunction on the enforcement of the Department of Labor’s (DOL’s) rule in those 4 states that was set to go into effect across the country on March 27,2015 that would have provided employees that were legally married elsewhere to same sex spouses and reside in those states with FMLA rights to care for their same sex spouse or that spouse’s family members under the same FMLA rights granted to opposite sex couples.
At issue is the fact that the four states do not perform same sex marriages nor recognize same sex marriages that were legally performed elsewhere. The states argued that the Supreme Court’s DOMA decision in June 2013 only struck down Section 3 of DOMA and did not change the recognition in Section 2 that the individual states determine whether marriage is only between a man and a woman.
Prior to the Supreme Court’s same sex marriage decision in the “Windsor” case, the DOL had issued a rule that employers were obligated to permit FMLA leave to an employee married to a same sex spouse if that employee resided in a state that recognized same sex marriage. The DOL’s new rule would have struck down the residency rule and replaced it with a “state of celebration” rule basically recognizing the same FMLA rights for legally married same sex couples regardless of where the couple resides.
Therefore, due to the preliminary injunction and until the case is decided, the DOL’s FMLA residency rule will continue to apply in the 4 affected states rather than the state of celebration rule. Affected employers and their benefit consultants in those states will have to continue to apply this separate rule that appears contrary to the federal tax rules that allow tax free health coverage for the same sex spouse using the state of celebration rule.
In the states where same sex marriage is legal and/or recognized, the DOL's state of celebration rule is in effect as of March 27, 2015 and employers should take steps to assure that their HR policies regarding FMLA are reviewed for compliance with the new rule.