You might remember when your father referred to your mother as “the little woman” or “the wife” – that was commonplace in years past and I really doubt that Dad would be able to identify his main squeeze using either phrase nowadays without raising some hackles.

There are many definitions that identify someone’s significant other and recent laws have caused employer benefit policies to be revamped as a result.

Domestic partners

It is important to see how the relationship is defined in terms of benefits gleaned from such a relationship, and, if the definition of spouse has evolved (in some states anyway), to include same-sex partners, what exactly is the definition of someone’s significant other when they refer to them as their  “domestic partner”?  The phrase “civil union” also may be used to describe a relationship between same-sex or opposite-sex persons.  Calling someone a domestic partner is merely terminology that is not meant to indicate that the partner is or isn’t a member of the opposite sex; instead, it is just a broad means to define a relationship between an unrelated and unmarried person who shares common living quarters and lives in a committed, intimate relationship that is not legally defined as marriage by the state in which the partners reside.  The partnership may include two persons of the same or opposite gender.  For some states, employer-provided health plans use the terminology “spousal equivalent” to define a relationship that provides the same emotional, physical and financial commitment that a traditionally sanctioned marriage would.  It is important that employers learn to distinguish between the various types of domestic definitions in their state as it pertains to employees when implementing policies for benefits and to avoid making an incorrect assessment.  If in doubt, it would behoove the employer to contact a New Jersey employment attorney in New Jersey to ensure you have made a proper determination as to the employee(s) in question.  Top employment lawyers in NJ ARE well versed with this issue and can help answer all of your legal questions.

Define the word spouse

The definition of the word “spouse” significantly changed in 2013 after the United States Supreme Court issued its long-awaited decision in the landmark civil rights case of United States v. Windsor, which required federal laws to ignore same-sex marriages that had already taken place under applicable state law and declare them unconstitutional.  That one decision impacted well over 1,000 federal laws, including the Family Medical Leave Act (“FMLA”), arguably the most-impacted law.  The FMLA permits eligible employees to take up to twelve weeks of unpaid, job-protected leave during any twelve-month period for various reasons, among them to care for the employee’s spouse who has a serious health condition.

However, the FMLA defines “spouse” as follows: “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common-law marriage in states where it is recognized.”  The Department of Labor interpreted this definition to forbid same-sex employees to be entitled to FMLA leave, even if same-sex marriage was recognized by state law.

Part of the decision by the Supreme Court held that the definition of “spouse” will be decided solely by state law. Therefore, the criteria for FMLA leave is applicable on a state-by-state basis.  If an employee is married to a same-sex partner and resides in a state that legally recognizes same-sex marriage, then the employee will be entitled to take FMLA leave to care for his or her spouse.

Well… that opened up a whole new can of worms on how employers should NOW administer FMLA leave.  So, H.R. departments in all states that recognize same-sex marriage had to scramble to retool their FMLA policies to include a partner of the same sex.

Landmark decision by the Supreme Court

Many same-sex couples cheered after the Supreme Court ruling (5-4) on June 26, 2014 permitting same-sex couples to marry and receive benefits from a domestic partner by declaring same-sex marriage to be a constitutional right under the Fourteenth Amendment to the Constitution.  Yes, it seems the Human Resources Department in any company is never at a loss to have new issues to worry about, and when the jurists in the highest court in the land issued their latest decision, that in turn necessitated new employer policies and endless updates to the employee handbook regarding benefits and FMLA policies as well.

Earlier in 2015 the Department of Labor had issued a final rule permitting an eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lived in a state that recognized their marital status.  So now the DOL’s final rule has been superseded by this latest edict permitting same-sex marriage to be a constitutional right.

What do employers departments need to do?

No matter the size of the company, a few items must be done to be in compliance with federal law.  In the meantime, however, employers and their H.R. personnel should become familiar with the aspects of the new provisions and state law as it pertains to the definition of same-sex marriage, civil unions of the opposite gender and domestic partnerships and apply leave rights depending on the category each employee falls into.

Remember that employers may go the extra step in extenuating circumstances and feel free to provider greater leave rights than those that are provided for under the Family Medical Leave Act.

If you are unsure about how to properly administer these benefits, you should seek the guidance of a trusted local labor and employment attorney.