• Posternock Apell, PC

Family & Medical Leave Laws Now Apply to Same-Sex Couples around the US

Following considerable discussion, the US Department of Labor made it official. Couples in legal same-sex marriages are now entitled to equal protection under the FMLA, the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601, et seq.)

Federal law was woefully behind New Jersey when it came to the rights of same-sex couples and FMLA. This is because the 1993 version of the Act included a definition of the word “spouse” that did not cover same-sex marriage.

In New Jersey, this has been the law since October of 2006, when the NJ Supreme Court ruled that gay and lesbian couples were legally entitled to take leave from work to care for a same sex spouse. Now, the rulings are federal, meaning that regardless of where in the US you live, people who are employed in qualified companies are eligible for FMLA coverage.

The Family and Medical Leave Act does have specific guidelines that apply more to the person’s job, not to their sexuality.

Employers with 50 or more employees must allow qualified individuals to take leave for up to a total of 12 workweeks in a year. The time off will be unpaid under the FMLA, but the company must hold the person’s job (or an equivalent position) for them while they are off on leave. Benefits, pay and other conditions of employment must also be restored to pre-leave levels.

FMLA applies to certain events, such as having to take time off to care for a spouse, child or parent with a serious health condition. The 12 weeks don’t have to be taken in a single block. FMLA guidelines permit intermittent weeks off or even a reduced work schedule over time.

Another important note: employees are entitled to be covered under their existing employer-provided health plan while they are on FMLA 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.

Of course, few laws are ever universally accepted and regulations regarding same sex marriage are particular hotbed topics. Texas, Nebraska, Arkansas and Louisiana all filed orders temporarily blocking the FMLA-same sex marriage ruling. These states don’t recognize same sex marriage. The issue may go all the way to the Supreme Court for a final decision.

Family laws are complicated. If you have any questions about same sex marriage, divorce or custody issues, contact an experienced lawyer who can provide sound legal advice. Call Posternock Apell, PC today to speak with a skilled family lawyer about your case.

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