A few weeks ago, we told you that the U.S. Department of Labor (“DOL”) issued a Final Rule that was to be effective on March 27, and would have allowed an employee to take FMLA leave to care for a same-sex spouse regardless of whether the employee lived in a state that legally recognizes their marital status.  Well, hold the phone.

As the Rule was set to go into effect, a Texas federal judge granted a preliminary injunction to a group of several state Attorneys General who brought suit to stop enforcement of the Rule.  According to that judge, the DOL exceeded its authority in changing the Rule because it forced employers to choose between complying with the FMLA and complying with certain state laws which define the term spouse differently.

Put another way, the Court agreed that, since the definition of same-sex marriage is up to individual states following the United States Supreme Court’s decision in United States v. Windsor to strike down the Defense of Marriage Act, the DOL impermissibly exceeded its authority in promulgating the Final Rule to implement its own different definition of spouse.  Therefore, in light of the Texas Court’s decision, the DOL’s Final Rule has been at least temporarily stayed.

Certainly, we will keep you posted on whether the DOL’s rule ultimately comes back around.  For now, however, current FMLA regulations still define “spouse” according to the law of the state in which an employee resides.  That means the FMLA does not presently provide same-sex spousal leave rights if an employee resides in a state that does not recognize an employee’s same-sex marriage validly entered into in another jurisdiction.