A day before the rule was set to take effect, however, a federal judge in Texas granted a preliminary injunction that temporarily blocks the DOL’s enforcement of the new rule. The judge’s decision came after attorneys general in Arkansas, Louisiana, Nebraska, and Texas—states which do not recognize same-sex marriages—challenged the rule as a violation of the full faith and credit provision at Section 2 of the Defense of Marriage Act, which survived the Supreme Court’s ruling in United States v. Windsor.

Section 2 of DOMA provides, in relevant part, that “No State … shall be required to give effect to any … proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." The plaintiff states argue that the new DOL rule violates Section 2 of DOMA to the extent it requires the states to grant FMLA rights to couples who entered into same-sex marriages in other states and, thereby, requires the states to recognize same-sex marriages entered into in other states.

The federal court judge’s ruling in favor of the plaintiff states is only temporary, and he has agreed to hold a hearing on April 13, if “requested by a party.” We will continue to keep you updated on advancements with this case, as well as with the Supreme Court’s ruling on the four same-sex marriage cases it will hear later this spring. It is worth noting that, although the future of the DOL’s rule is uncertain, nothing bars employers from voluntarily extending FMLA or other leave rights to same-sex couples.

Under the FMLA, eligible employees are entitled to take 12-weeks of unpaid, job-protected leave for covered family and medical reasons, including to care for a “spouse” with a serious health condition. Prior to today, the regulations defined “spouse” under a “state of residence” rule, which meant that only same-sex spouses residing in a state that recognized same-sex marriage were entitled to take spousal leave under the FMLA.

In the Final Rule published just yesterday, the DOL has amended the definition of “spouse” to expressly reference same-sex marriages and common law marriages entered into in any state that recognizes such marriages. The definition also encompasses same-sex marriages entered into abroad that could have been entered into in any US state. Under the new definition, same-sex spouses can avail themselves of the FMLA’s protections, regardless of the law of the state in which they currently reside.

The Final Rule will take effect on March 27. Employers should take this time to update their policies and practices and ensure that individuals tasked with enforcing the FMLA are aware of this pending change.