May 26, 2020

Update on Final Rule for the Family Medical Leave Act

On March 26, 2015—just one day before the Final Rule for the Family Medical Leave Act (“FMLA”) was to take effect—a federal court in Texas blocked the Final Rule’s application to the states of Texas, Arkansas, Louisiana, and Nebraska, pending a full determination of the issue on the merits in Texas v. United States.

The plaintiff States sued the U.S. Department of Labor (“DOL”) over the promulgation of the Final Rule, arguing that the DOL exceeded its authority by requiring states to violate Section 2 of the Defense of Marriage Act and their respective state laws prohibiting recognition of same-sex marriages from other jurisdictions.  Under the Final Rule, which we discussed here, legally married same-sex couples are included in the FMLA’s definition of “spouse” and are eligible to use FMLA leave to care for their spouse or family member, regardless of whether their marriage would be recognized in the state where they live.  In response to the plaintiff States’ lawsuit, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction staying the implementation of the Final Rule to the plaintiff States.

The court first held that the plaintiff States have a substantial likelihood of succeeding on their claims that the Final Rule improperly conflicts with (i) the FMLA’s traditional definition of “spouse,” (ii) the Federal Full Faith and Credit Statute, and (iii) the states’ own definitions of marriage.  According to the court, the Final Rule interferes with the ability of state agencies to abide by the states’ definitions of marriage, causing the plaintiff States to suffer irreparable harm.

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About this Author

Lindsey Burke Employment Law Attorney at Covington Burling Law Firm

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her U.S. practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and non-competition issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal workplace culture assessments and audits in the wake of the #MeToo movement. Her international practice focuses...