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Kates Nussman Rapone Ellis & Farhi, LLP

Marriage Equality and Employer Rules

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The recent U.S. Supreme Court decision establishing marriage as a fundamental right and did more than just legalize same-sex marriages across the country-it also prevents employment-related regulations from denying benefits to same-sex couples by having narrow definitions of "spouse" and "family" that apply only to different-sex relationships. One such regulation is the Family and Medical Leave Act, which applies to private employers with more than 50 workers, and all public employers. The Act requires that employers give eligible employees (those who have worked for their employer for at least 12 months and have worked for at least 1,250 hours over the previous 12 months) up to 12 weeks of unpaid sick leave, enabling workers to balance their job responsibilities with the contingencies of life, such as serious injuries or pregnancies, without fear of termination.


Prior to the new decision, both different and same-sex couples could use the Act to take time off to care for their children, even if the child isn't biologically related to the parent. However, when it came time to taking time off to care for a spouse, the definition only applied to different-sex couples. On February 24 of this year, before the Supreme Court's decision, the U.S. Department of Labor issued a regulation that allowed employees to take time off to care for their same-sex spouse if the marriage was valid in the state where it was initiated. It did not matter if it was recognized in the state of residence. Now, same-sex marriages are to recognized in every state, allowing same-sex couples across the country to benefit under the FMLA and similar employment benefits, such as the ability to take time off after a spouse's death via bereavement leave.


Private employers with family and spouse related policies should adjust those employee benefits in light of the new constitutional ruling. Any workplace rules that defined "spouse" as members of a different-sex union must now include same-sex partners. Other changes may need to be made, including new language in retirement and insurance plans. When it comes to hiring practices, state laws that prevent employers from discriminating against married workers will now include same-sex couples in that protected class. With this new right for same-sex couples, employers should make whatever revisions are necessary to eliminate unequal treatment in the workplace based on marital status. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and will soon serve as Managing Research Editor of that publication.

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