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.