In October 2006, the New Jersey Supreme Court ruled that same-sex couples are entitled to equal protection and, thus, are qualified for the same statutory rights and benefits afforded to heterosexual married couples. See Lewis v. Harris, 188 N.J. 415 (2006) (instructing the New Jersey Legislature to amend the marriage statutes or enact a new statutory scheme to provide committed same-sex couples the same rights as those enjoyed by married couples). As a result, to the extent not covered or preempted by federal law, employment policies and certain state statutes, such as the New Jersey Family Leave Act, N.J.S.A. 34:11B-1, et seq. (“NJFLA”), and the New Jersey Continuation Coverage Rules (New Jersey’s “Mini-COBRA”), were expanded to provide equal rights to married or committed same-sex couples. Now the federal government may be following suit.

On February 23, 2015, the United States Department of Labor announced a groundbreaking change to its rules, effective March 27, 2015, which entitles same-sex marriages to equal protection under The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”). What does this mean? Under this rule change, qualified employees in legal, same-sex marriages, regardless of where they live, would be eligible to take FMLA leave to care for a spouse. The Labor Department’s proposed rule change is consistent with the United States Supreme Court’s holding in United States v. Windsor, 133 S.Ct. 2675 (2013), which invalidated as unconstitutional Section 3 of The Defendant of Marriage Act, which restricted the definitions of ‘‘marriage’’ and ‘‘spouse’’ for purposes of federal law, regulations and administrative interpretations to mean a legal union between a man and woman, or persons of the opposite sex. The Labor Department, through this expansion to the regulatory definition of “spouse” in 29 C.F.R. §§ 825.102 and 825.122(b), will officially recognize same-sex marriages as being entitled to FMLA spousal leave.

The FMLA, which covers employers with 50 or more employees, allows qualified employees to take job-protected, unpaid leave for up to a total of 12 workweeks in a 12-month period for certain covered events, including the care of the employee’s spouse with a serious health condition. FMLA leave may be taken in a block, or under certain circumstances, intermittently or on a reduced leave schedule. In addition to providing job-protected family and medical leave, employers must maintain any preexisting group health plan coverage for an employee on FMLA-protected leave under the same conditions that would apply if the employee had not taken leave. Once the leave period ends, the employer is required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.

Federal law has not kept pace with New Jersey law in affording same-sex couples an equal right to care for a spouse or loved one with a serious health condition. Previously, the regulatory definition of “spouse” under the FMLA did not include same-sex spouses. This new change, however, extends the protections of the FMLA to same-sex marriages and common law marriages so long as the marriage was legally recognized and valid in the place where it was “celebrated.” This includes marriages consummated abroad so long as the marriage could have been entered into legally in at least one State. The goal: to ensure consistent federal family leave rights regardless of the jurisdiction. The rule change includes language defining “spouse” as a “husband” or “wife” but makes clear that these traditional terms include all individuals in lawfully recognized marriages.

This change has not been universally accepted. On Thursday, March 26, 2015, a federal judge in Texas issued an order temporarily blocking the rule change, at least in its application to same-sex couples working in Texas. Texas v. United States, Civil Action No. 7:15-cv-00056-O, 2015 U.S. Dist. LEXIS 38264 (March 26, 2015). Nebraska, Arkansas and Louisiana also joined in the application filed by Texas to enjoin the Department of Labor, through the FMLA, from providing equal employment leave rights to same-sex couples. The states contesting the change to the FMLA still do not recognize same-sex marriage. As a result, same-sex couples residing in Texas (and the other referenced states) have married outside of their state of residence. The federal court’s preliminary ruling in Texas v. United States prevents such couples from receiving the benefits provided to heterosexual married couples until the issue is fully adjudicated, perhaps all the way to the steps of the United States Supreme Court.

In New Jersey, however, the rule change took effect March 27, 2015 without controversy. The change is important, as the change to the FMLA nicely compliments the existing protections afforded to employees in New Jersey under the NJFLA. New Jersey HR Managers and FMLA coordinators should revisit their policies to ensure leave for legal same-sex spouses is covered as it is for heterosexual couples. Appropriate documentation (i.e., proof of marriage) should be requested – if not previously obtained – to process new FMLA requests. Of course, employers must exercise caution in requesting and maintaining such documentation to avoid any risk of exposure to liability under New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-12.