The effects of the U.S. Supreme Court’s decision in United States v. Windsor continue to ripple through the workplace. Windsor struck down a Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.
Now the Department of Labor has issued rules extending FMLA protections to same-sex married couples.
WHAT’S NEW: In June 2013, the Supreme Court ruled that the Defense of Marriage Act’s (DOMA) prohibition against recognizing same-sex marriages was unconstitutional. DOMA applied to all federal programs and laws, including the FMLA.
Since their inception, FMLA regulations have based marriage recognition on the employee’s state of residence. The U.S. Department of Labor (DOL) reiterated this position in August 2013 when it interpreted the regulations to apply to same-sex marriages.
However, that same month, the IRS ruled that same-sex couples with valid marriages would be treated as married for tax purposes regardless of where they lived. In September 2013, the DOL ruled that same-sex spouses would be treated the same as opposite-sex spouses in retirement plans covered by the Employee Retirement Income Security Act (ERISA).
Now the DOL has proposed new rules that would unify FMLA regulations with IRS and ERISA regulations. If the regulations are adopted, same-sex marriages performed in states where they are legal will be recognized for FMLA purposes anywhere in the country regardless of where the individual resides.
The “place of celebration”—meaning the state where the marriage ceremony was performed—will determine the marriage’s legality, not the employee’s state of residence. Marriages performed in foreign countries are legal if the marriage would be legal in any U.S. state.
In addition to spousal leave, the move will allow married same-sex partners to take leave to care for a step-child (the married partner’s child) with a serious health condition. DOL regulations ask the courts to broadly interpret the FMLA’s definition of family, allowing all married couples to care for step-children regardless of legal custody arrangements.
A 45-day public comment period will end in August; the final rule will be published afterward.
HOW TO COMPLY: This change will simplify FMLA administration for employers in one sense. Instead of having one set of rules for employees who live in states where same-sex marriage is legal and one for everyone else, employers may simply treat everyone equally. Employers won’t have to keep following court decisions state-by-state and then match them with their employees’ states of residence.
Update FMLA policies, practices
Any FMLA policy that specifically refers to spouses as being of the opposite sex should be scrapped. Employers may make affirmative statements that they recognize any marriage recognized under the new FMLA regulations. Train all staff members who implement FMLA policies and procedures to treat same-sex marriages the same way they treat opposite-sex unions.
Verifying marriages
Employers have the right to require documentation that employees are married. This is true for a wide variety of reasons, not just administering the FMLA.
ERISA grants spouses specific rights as retirement plan beneficiaries; for example, an employee may not remove a spouse as a beneficiary without his or her written permission.
Similarly, health insurers may require documentation showing that spouses and children are entitled to coverage. Because health benefits for spouses are not taxed, employers have a vested interest in knowing the person the employee claims as a spouse is really a spouse.
The best approach is to ask all married employees to present marriage certificates. Asking everyone for documentation eliminates any appearance of discrimination. Advise employees that it is their responsibility to inform you of any changes in circumstances, such as death of a spouse or child, separation or divorce.
Transgender issues
Although FMLA regulations do not specifically address transgender employees or spouses, the DOL encourages a broad interpretation of family. The EEOC takes the position that discrimination based on gender identity, pending sex change or transgender status is sex discrimination under Title VII of the Civil Rights Act. At least one decision by the District of Columbia Federal District Court backs that position.
As long as the employee can show a valid marriage certificate, the gender identity or transgender status of the employee or spouse are irrelevant for FMLA purposes.
Training issues
Just because regulations change doesn’t mean everyone will suddenly embrace same-sex marriage. Employers may have legal liability should employees discriminate against lesbian, gay, bisexual or transsexual employees and their spouses.
Although these are not explicitly protected classes under Title VII, the trend seems to be in that direction.
