Summer is normally a quiet time in the law because Texas and federal legislators take the summer off; but this summer has been particularly significant for employment law. One of the most important changes came through the Supreme Court’s holding in United States v. Windsor, Executor of the Estate of Spyer, et al. in which the court held the Defense of Marriage Act’s (DOMA) definition of marriage excluding same sex couples was unconstitutional.
The Supreme Court’s holding has substantial ramifications for federal employment law. It affects what rights can be given to which spouses.
Specifically, this holding affects spousal rights under the Employee Retirement Income Security Act (ERISA) that governs health and retirement benefits. It also affects the Family Medical Leave Act (FMLA) that governs medical leave.
FMLA spousal care protections
Under FMLA, employees who work for employers with more than fifty employees in a seventy-five mile radius and have worked a minimum of one year and 1,250 hours for the employer is entitled to FMLA-protected leave up to twelve weeks in a twelve month period for certain medical conditions, including the birth of a child, adoption of a child, the employee’s serious health condition or a family member’s (including a spouse) serious medical condition. (Additional protections exist for servicemembers.)
Under the DOMA opposite-sex marriage definition, an employee would not receive FMLA-protected leave to care for a same-sex spouse with a serious medical condition or the birth of a child where the employee is neither the mother or father of the child.
That is because the DOMA definition treated a same-sex married couple as though there was no marriage. Employers had no obligation to extent the same rights to same-sex married employees and those employees had no protections under FMLA.
How FMLA spousal care protections have changed
The Department of Labor has acknowledged the Supreme Court’s position on DOMA and revised its FMLA guidance to remove restrictions on opposite-sex marriages.
FMLA will now extend to same-sex married employees to the same extent as opposite-sex married employees to provide care for same-sex spouses with serious health conditions and to the extent the same-sex spouse appears as a parent of a child after birth or adopts the child of his or her same-sex spouse, the same-sex married spouse can now obtain the same FMLA-protected leave.
With one really important caveat.
The Supreme Court’s decision did not make same-sex marriage legal in all states or require all states to recognize it. Under FMLA the definition of marriage will fall back to the definition applicable in the state where the employee works.
Some states, like Texas, passed legislation defining marriage as a one man-one woman marriage, excluding same-sex marriage.
This legislation would limit the FMLA rights of same-sex employees in Texas. However, these state-level marriage definition laws remain untested against the federal constitution. Should the Supreme Court find these state laws unconstitutional, then FMLA rights will apply equally across all states. With a conservative majority on the court it is unclear whether the Supreme Court will reach that decision soon. After all, it took fifteen years to overturn DOMA’s limiting definition.
Texas attempts to block the Department of Labor rule requiring FMLA benefits to same sex marriages
The Department of Labor issued a final regulation for the Family Medical Leave Act that requires employers to provide FMLA leave benefits for the care of a same-sex spouse who suffers from a serious medical condition. The DOL regulation is a product of litigation before the Supreme Court of the United States. It held federal law must recognize same sex marriages issued in states where same sex marriage is lawful. (United States v. Windsor)
The new DOL regulation applies even in states like Texas where our backwards laws did not yet allow or recognize same sex marriages. This is because FMLA is a federal rule. It is generally not subject to the restrictions of state law. Our new Texas Attorney General followed in the footsteps of his predecessor, now Governor Abbott, and challenges same sex marriage on all fronts.
The new FMLA regulation is in his crosshairs and he has filed for an injunction seeking to prohibit the DOL from enforcing the regulation on Texas public agencies, whose employees are eligible for FMLA leave.
Texas argues federalism prohibits federal definition of marriage for FMLA benefits
The Texas Attorney General claims the issue is about federalism and federal government overreach but underneath his flimsy legal arguments this is just another part of the platform opposing gay marriage as create rallying and funding opportunities for conservative political groups. The legal arguments here could hardly be more flimsy. The AG’s position about federalism would hold water if FMLA itself was a new law. It isn’t.
FMLA is a federal law in which the federal government generally has authority to determine who is entitled to benefits under the law. Congress could have made FMLA only give the employee leave for his or her own medical conditions. It could have written FMLA to grant leave for anybody’s medical conditions. Congress chose to draw the line where it did to include married couples. It is not up to the states to decide when following federal law is convenient.
However, federalism is subject to attack by certain lawmakers who oppose any federal law they dislike in every way possible. For gay marriage opponents any ground ceded to gay marriage might open the floodgates. Politicians like the AG know resisting gay marriage in Texas will not prevent it; but it creates a win-win scenario for them.
Resisting the legalization is itself a benefit, no matter how much it costs. It creates a media platform to advance their cause. When they lose, as the AG will, that creates a new platform to talk about federal government overreach.
Texas Attorney General sued the U.S. government in federal court to block application of the rule
The Windsor decision eliminated the federal definition of marriage that excluded same sex marriage. However, the decision left another section of DOMA preventing the federal government from requiring states to recognize it. Texas voted a same sex marriage ban into the state constitution a decade ago so the FMLA rule would be at odds with Texas law. DOMA would prevent the DOL from enforcing its rule on Texas.
Judge O’Connor granted the injunction, temporarily staying implementation of the rule. The delivered a laundry list of reasons why the new rule violates congressional intent, administrative burdens and so forth. Due to the probability of Texas and the other states prevailing against the DOL, Judge O’Connor granted the injunction. (You can read the opinion here.)
I generally disagree with the court’s findings on a number of these issues. However, with cases before both the federal and Texas Supreme Courts on the constitutionality of same sex marriage bans it will likely only be a matter of time before the same sex marriage bans are struck down.
Ultimately the Texas Attorney General lost and FMLA benefits must extend to all same sex marriages in Texas.