Employers need to examine policies, laws in light of SCOTUS same-sex marriage ruling

June 26, 2015 - by: Tammy Binford 2 COMMENTS

The U.S. Supreme Court’s June 26 ruling in favor of same-sex marriage means employers across the country need to take a look at their policies as well as the effect the ruling has on various laws dealing with employment.Pride flag at city hall

The Court’s 5-4 ruling in Obergefell v. Hodges struck down prohibitions on gay marriage in states covered by the U.S. 6th Circuit Court of Appeals—Kentucky, Michigan, Ohio, and Tennessee. But it has the effect of legalizing same-sex marriage nationwide.

“Employers need to be aware of how this ruling will affect several employment laws that relate to marriage, particularly involving leave or benefits,” Ryan Frazier, an attorney with Kirton McConkie in Salt Lake City, Utah, said after the ruling was announced.

Frazier said the most obvious impact will be with respect to the application of leave benefits under the Family and Medical Leave Act (FMLA). The FMLA requires covered employers to provide up to 12 weeks of leave per year for employees dealing with their own serious health condition or that of a close family member, including a spouse. The law also requires employers to offer employees leave for a spouse’s covered military service and for military caregiver leave.

“This ruling should afford FMLA leave to an employee in a same-sex marriage regardless of the state in which the marriage was performed or where the employee seeking leave resides,” Frazier said.

Employers also need to keep in mind that the ruling means that laws in every state providing for spousal benefits must “extend to same-sex marriage spouses on equal footing with the benefits required for opposite-sex spouses,” Frazier said. “Further, employers need to evaluate how this ruling will affect their own policies, including those set forth in employee handbooks, relating to spousal benefits and leave.”

Frank Wobst, an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio, also said employers need to consider the impact on employee benefits plans and COBRA benefits. “For example, COBRA benefits that let spouses of former employees continue buying health insurance through an employer-provided plan will extend to same-sex couples in legally recognized marriages,” he said.

Also, the decision should “definitively resolve in all states the issue of whether a legally recognized spouse in a same-sex marriage is covered by the FMLA.”

Albert L. Vreeland, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama, said the ruling clears up the issue for employers in states that had not recognized same-sex marriage. Employers in those states were unsure how to treat employees in same-sex marriages who were married in other states. “There was the potential for a lot of confusion and possible litigation,” he said. “This ruling greatly simplifies the employer’s analysis—same-sex marriages will be treated the same as traditional marriages for all purposes.”

Kylie Crawford TenBrook, who serves as corporate counsel for Best Western International, Inc., in Arizona, said employers that haven’t already done so need to look at their handbooks and how they define “spouse.” They also need to make sure their health plans are in line with the law and that the accounting department knows the impact on employees in same-sex marriages who file joint tax returns.

TenBrook said employers also need to consider the effect of the ruling when planning their diversity initiatives. The ruling is “more far reaching in theory than just same-sex marriage,” she said. “Everyone has the same rights and privileges regardless of who they are and what protected class they fall into.”

Justices’ opinions

Justice Anthony M. Kennedy wrote the majority opinion, and he was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito dissented, each writing his own dissent.

In the majority opinion, Kennedy addressed changing attitudes about same-sex unions. “These new insights have strengthened, not weakened, the institution of marriage,” he wrote. “Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

Kennedy also acknowledged opposition to same-sex marriage on religious grounds. “Finally, it must be emphasized that religions and those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” he wrote. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Kennedy continued that those who differ on same-sex marriage “whether as a matter of religious conviction or secular belief” may engage in “an open and searching debate.” But he went on to say that the Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

Chief Justice Roberts disagreed with Kennedy’s constitutional argument in the principal dissenting opinion. “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision,” he wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

About Tammy Binford:
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.
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2 COMMENTS

1 Geraldine Stanford
09:29:38, 01/07/15

This is a milestone decision. I want to review this decision more in depth and learn how it impacts my organization as a who to ensure that all of our employees are treated equally under the law. I want to compare our policies to this new law change to see if our policies need to be revised in any way. I want to review how this decision will impact our workforce overall especially when it comes to applying the FMLA Laws and Insurance benefits including Life Insurance beneficiaries. Where can I find more references on this issue?

2 Susan Schoenfeld, BLR Legal Editor
12:46:05, 07/07/15

Geraldine:
Great question. You are right to review company policies to ensure that you are in compliance with the court’s decision.
For FMLA guidance, may I suggest looking at a recent BLR article on the topic at http://hr.blr.com/HR-news/Benefits-Leave/FMLA-Leave-of-Absence/FMLA-Supreme-Court-same-sex-marriage-decision
In light of the Supreme Court’s decision, you are correct that you should revisit your employee benefit plans. For instance, many large employers already offer group health insurance for employees’ domestic partners even though same-sex
marriage wasn’t legal in all 50 states. The benefit placed additional administrative burdens on employers and had certain tax implications for employees in states that didn’t recognize same-sex marriage.
Now that same-sex marriage is legal in all 50 states and same-sex spouses must be covered under employer benefit plans on the same basis as opposite-sex spouses, you may want to consider phasing out domestic partner coverage. You will want to consider the impact such a decision will have on employees, including how many employees take advantage of domestic partner coverage.

Communicating any change well in advance of implementation is critical.
When there is a change in the law, it’s important to review and update policies. In states where same-sex marriage wasn’t recognized before the Supreme Court
decision, employers will need to review benefit plans and audit policies that reference spouses or domestic partners or that may be affected by the ruling.

FMLA and other leave policies should be reviewed. A written FMLA policy should include same-sex spouses in the definition of spouse. Sick leave and bereavement leave policies also should be reviewed and updated if necessary.

As noted above, group health insurance plans should be reviewed so that same-sex spouses are treated equally with opposite-sex spouses. Other benefit plans,
including 401(k) and other retirement plans, life insurance, and any other benefit with beneficiary designations, should be reviewed as well. In some cases, employees will need to review their beneficiary designations.

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