Same Sex Marriage for Employers

With Same Sex Marriage Decision, Employers May Need to Update Their FMLA Policy

On June 26, the Supreme Court ruled the Fourteenth Amendment “requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”
Whether an organization and its employees agree with the decision or not, same sex marriage is now the law of the land in all 50 states and employers must make sure to update all their relevant policies – including those related to the Family and Medical Leave Act (FMLA).
Earlier this year, the Department of Labor issued a rule permitting an otherwise qualified employee to take FMLA leave to tend to a same-sex spouse if their union was made legal by any state, despite the fact that a employee may live in a state that does not recognize their marital status.

Can you fight the decision?

Four states resisted the DOL rule and obtained an injunction through the court system. Several states have also vowed to fight the Supreme Court decision or not issue marriage licenses to same sex couples. However, employers that do not follow the court’s ruling run the risk of being found in violation of federal law.
According to recent reports, lawyers in states where same sex marriage has become legal have been inundated will calls regarding ways to fight the Supreme Court’s decision. Lawyers appear to be overwhelmingly advising employers to comply with the decision.
“Don’t waste your time looking for ways to defeat this,” James Griffin, an expert on employment benefits, told The Dallas Morning News.

What steps to take

With the Supreme Court having ruled same sex marriage is a constitutional right, most questions swirling around the DOL rule have been put to bed and employers can now simplify their policies by treating employees in same sax marriages the same as those in heterosexual marriages.
Employers should take this opportunity to ensure that their FMLA policies and any other policies are now in compliance with the Supreme Court’s decision. Employers should also train both management personnel and front-line employees on how to handle same-sex FMLA situations.
A change to federal laws often results in changes at the state level and employers should look into any marriage-related state programs that may have been impacted by the Supreme Court’s decision. In particular, states may have various rules for same-sex marriage, civil unions, and domestic partnerships. An employee’s rights will depend on which protected category they fall into.

Speaking of civil unions and domestic partnerships, the Supreme Court decision does not apply to these situations, meaning employers need to figure out how their FMLA policies will apply to folks in these partnerships.
Of course, employers are free to grant their employees benefits or protections beyond what is offered at the state and federal level.

Other considerations

In addition to possibly updating their FMLA policy, employers should take this opportunity to comb through all of their benefit policies and documentation to ensure they are following federal law. Updates may include those related to tax reporting, health insurance, retirement and life insurance.
Company policies may explicitly or implicitly refer to marital status so employers will need to be vigilant when making assessments in light of the Supreme Court decision. In particular, employers should look at issues of bereavement, relocation allowance and even minor perks like employee discount plans. A good rule of thumb is to change any references to “husband” or “wife” to “spouse.”.

While these changes may sound cumbersome, they are typically simple ones to make, and employers would do well to ensure these changes are made as quickly as possible.