Now that same-sex marriage is legally recognized in New Jersey, employers face a choice. Like opposite-sex spouses, same-sex spouses can take time off to care of an ill spouse. But should the employer verify the marriage?
As applied to an employee in a legal, same-sex marriage, regulations under the Federal Family Leave Act (FMLA) treat a same-sex married employee differently from an employee in an opposite-sex marriage. For an employee, in an opposite-sex marriage to prove that he or she qualifies for FMLA leave to care for a spouse, that employee must show: (1) that the employee’s spouse is suffering from a serious health condition; and (2) that the employee is legally married to the spouse.
For an employee in a same-sex marriage to enjoy the same rights as an employee in an opposite-sex marriage, the employee in a same-sex marriage must show these same two preconditions, as well as a third precondition: (3) that the employee currently resides in a state that recognizes same-sex marriage. Thus, employers have often asked for proof of employees’ current state of residency in these situations.
As of October 21, 2013, employees living in New Jersey can take time off to care for a same-sex spouse.
Most of the time, employers do not ask an opposite-sex married employee to prove that he or she is married before taking a leave of absence to care for an ill spouse. No one asks to see the marriage license with the medical certification.
But an employer may be tempted to verify the status of same-sex spouse, if nothing more than for the novelty of the request. Is the employee trying to get an extended vacation or do they have a legal spouse to care for?
New Jersey law prohibits discrimination based on sexual orientation. Would verifying the same-sex marriage but not the opposite-sex marriage constitute discrimination? Probably not in a legal sense, particularly when the leave of absence is granted and no harm has been done. But the disparate treatment may disturb some employees.
Should all marriages be verified, or none at all?
The same issue came up when New Jersey enacted its civil union law, which made same-sex partners eligible dependents for employer-sponsored group healthcare benefits. Employees wanted their partners covered. Employers improvised. Many verified civil union status because it made sense to do so to determine eligibility for healthcare benefits. Some let it slide.
We’ll see how it goes. Some employers will verify and others won’t. But it’s probably time to begin considering a legislative clarification so that employers needing to determine whether an employee in a same-sex marriage qualifies for FMLA leave can do so without violating state law.
Sarno is executive director of the Employers Association of New Jersey (www.eanj.org). His op-ed was originally posted at his website and generated the comment below from a reader:
This seems clear-cut to me. The law — and, in my personal opinion, ethics — prohibits discrimination based on sexual orientation. If you had a policy of verifying your heterosexual employees’ marriages prior to the recent legalization of homosexual marriage in the state, then you would be justified in verifying your homosexual employees’ marriages, as well.
If, however, you did not have such a policy in place, then it would be discriminatory — and petty, in my opinion — to start selectively verifying only your homosexual employees’ marriages. If you decide to change your policy and institute marriage verification, then you must do so for all employees, regardless of their sexual orientation.
Furthermore, all such verification really should be done either (a) when the employee is hired, (b) when a single employee gets married, (c) when a new policy is put in place, or (d) as part of a well-established, non-discriminatory internal FMLA leave application process.
Asking any employee out of the blue to verify their marriage to a spouse who is ostensibly ill enough to require the employee to take unpaid leave to care for that spouse is beyond the pale, and adds unnecessary stress to what is almost certainly already a very stressful time in that employee’s life.
— George Glynn