This morning I was prepared to draft a post reminding you that as of today the new DOL rule regarding same-sex spouses would go into effect. Under the old FMLA rule, a spouse was defined as someone lawfully married in the state in which the employee resides. This rule meant that even with the striking down of the Defense of Marriage Act, a same-sex couple who were lawfully married but lived in a state where same-sex marriage was not recognized, would not be spouses for purposes of the FMLA.
The Department of Labor issued a new “place of celebration” rule that would mean that as long as a couple were lawfully married in a state or foreign country where same-sex marriage was legal, then they would still be spouses for purposes of FMLA even if they resided in a state that did not recognize same-sex marriage.
In an action filed by the Texas Attorney General, a federal court judge has enjoined the application of the rule insofar as it would require employers in those states where same-sex was not legal to choose between violating federal or state law.
So, for now, employers will still need to follow the “place of residence” rule when determining whether a same-sex spouse is a spouse for FMLA purposes.