A federal district court granted a preliminary injunction on Thursday ordering the Department of Labor to postpone the application of a rule that would have extended Family and Medical Leave Act benefits to same-sex married couples even in states that do not recognize same-sex marriage. The FMLA amendment was to go into effect on March 27.

In a lawsuit filed March 18, the Texas state attorney general argued that the federal regulation would violate state law that does not recognize same-sex marriages and that the DOL overstepped its authority in redefining the term spouse. Louisiana, Nebraska and Arkansas also joined the suit.

The Texas federal district court held that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the DOL to regulate spousal benefits to do so.

Also see: DOL updates definition of ‘spouse’

Employers in states that do not recognize same-sex marriages should keep an eye on the lawsuit, advises Douglas Kauffman, a partner with law firm Balch & Bingham LLP, and consider whether they want to proceed and voluntarily provide FMLA spousal benefits to same-sex married employees, irrespective of the injunction.

“There is little risk to employers who choose to voluntarily do this,” he says. “Even in states that do not recognize same-sex spouses, it is not illegal to provide benefits to same-sex spouses. Many employers have provided domestic partners the same benefits as FMLA-defined spouses, long before the DOL’s new rule.”

If employers in states that do not recognize same-sex marriage, such as Texas, want to wait to provide FMLA benefits to same-sex married couples, they may have a legal leg to stand on based on the injunction, but Kauffman cautions the DOL may not look too kindly on such an approach.

Also see: Employers face litigation threat in FMLA cases

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