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October 07, 2015
What the Supreme Court’s same-sex marriage decision means for FMLA (and beyond)

By Susan Schoenfeld, JD, Senior Legal Editor

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In late June, in Obergefell v. Hodges, the U.S. Supreme Court held that the 14th Amendment of the U.S. Constitution requires states 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.

The opinion, authored by Justice Anthony Kennedy, makes same-sex marriage lawful in all states nationwide and has far-reaching implications in the 13 states that did not recognize same-sex marriage. The Court’s decision also simplifies and expands the application of a number of state and federal laws that grant certain rights and protections to spouses, including the Family and Medical Leave Act (FMLA).

FMLA’s ‘place of celebration’ rule

FMLA leave allowed to ALL married couplesFMLA’s regulations allow eligible employees to take leave from their jobs to care for a spouse with a serious health condition, among other reasons. Until recently, many employees in same-sex marriages either could not qualify for FMLA leave to care for their spouse or were forced to overcome hurdles in proving the validity of their marriage in the state where they lived or the state where the marriage was celebrated.

In March 2015, the U.S. Department of Labor (DOL) significantly simplified and expanded FMLA’s spousal leave rule by changing the FMLA regulation’s definition of a “covered spouse” to be determined by the law of the state where the employee entered into his or her marriage. The final regulations changed FMLA’s rule for determining spousal coverage from the previous “place of residence” rule to a “place of celebration” rule.

The place of celebration rule allows all legally married couples, whether opposite-sex, same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. The place of celebration rule allows eligible employees to take spousal FMLA leave for same-sex and common-law spouses to care for the spouse with a serious health condition, specific types of leave for the spouse’s covered military service, and military caregiver leave for the spouse.

Impact of Obergefell on FMLA

The Supreme Court’s decision in Obergefell makes same-sex marriage lawful in all states nationwide. As a result, employers making FMLA spousal leave eligibility determinations no longer need to consider state law in determining the validity of an employee’s same-sex marriage. All married couples will be covered regardless of sex, where they were married, or where they live.

FMLA’s final rule’s definition of “spouse” also expressly includes individuals in lawfully recognized same-sex and common-law marriages and marriages that were validly entered into outside of the United States, as long as the marriage is valid in the place where it was entered into, and could have been entered into in at least one state of the United States (i.e., in a state that authorizes same-sex marriages).

After Obergefell, same-sex marriage is legal in all states. As a result, same-sex marriage entered into outside the U.S. will be recognized under the FMLA, regardless of the state in which the employee lives.

Remember, FMLA’s definition of a covered spouse requires that the employee be married. Domestic partnerships and civil unions do not constitute marriages under the FMLA; therefore, they are not protected. Common-law marriages, however, are protected if they are legally recognized in the state in which the marriage occurred.

Impact beyond the FMLA

The decision in Obergefell means that laws in every state providing for spousal benefits must extend to same-sex marriage spouses on the same basis as benefits required for opposite-sex spouses. As a result, employers need to take a look at their own policies, including those set forth in employee handbooks, relating to spousal benefits and leave.

The following is what some employment attorneys have to say about the broader impact of Obergefell on employer practices and policies:

Frank Wobst, an attorney with Porter Wright Morris & Arthur in Columbus, Ohio, advises that employers consider the impact on employee benefit plans and Consolidated Omnibus Budget Reconciliation Act (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.

Wobst also says 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, recognizes that the Supreme Court’s 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 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.”

Action items

In light of the Supreme Court’s decision, and on the advice of these experts, employers should revisit employee benefit plans. For instance, many large employers already offer group health insurance for employees’ domestic partners even though same-sex marriage wasn’t previously 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, employers 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.

Review and update policies

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 should also 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.

SusanSusan Schoenfeld, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor.

In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.

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Questions? Comments? Contact Susan at for more information on this topic

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