Demise of DOMA Affects More Than Federal Employees

The demise of DOMA and effects on employee benefits go much farther than federal employees, in ways both obvious and obscure.

The Supreme Court’s recent landmark ruling on same-sex marriages, US v. Windsor, is a case that involved the denial of a deceased spouse’s federal employment-related benefits due to the Defense of Marriage Act, or DOMA.  It was not an employment case per se; rather it was a civil rights case challenging a key component of DOMA.  However, its rippling effects will be felt in HR departments across the country.

Now, agencies of the federal government are obliged to recognize same-sex marriages in the same way they recognize heterosexual marriage, with all of the pertaining rights such as health plan enrollments, retirement and disability benefits, and federal tax withholding allowances, including Social Security and Medicare.  Twelve states and the District of Columbia recognize same-sex marriages. Previously, in those states only state-sponsored benefits were extended to gay spouses.

As a result of US v. Windsor, businesses operating in those states will now need to address the extension of federal benefits or entitlements as noted above. But the ramifications go even farther than that. Think Family Medical Leave Act (FMLA), Consolidated Omnibus Reconciliation Act (COBRA), Employee Retirement Income Security Act (ERISA) and the Health Information Portability and Accountability Act (HIPAA).

Take FMLA. Under that law, “spouse” has a specific definition; spouse means a husband or wife as defined or recognize under state law for the purposes of marriage in the state where the employee resides, including common-law marriage in states where it is recognized.  Prior to the ruling, the Defense of Marriage Act (DOMA) defined marriage as a legal union between one man and one woman and defined spouse only as a person of the opposite sex who is a husband or wife.  The definition barred approving FMLA leave to take care of a same-sex spouse.  However, after the Supreme Court’s ruling.  The definition of spouse is left to the states.  So in those states that recognize same-sex marriage, FMLA leave would be available to care for same-sex spouses.  Because it is up to the states to recognize and determine what a marriage is, employers should look to the state law where their business is located and adjust their policies accordingly.

We’ve created a quick-reference chart of the status of same sex marriage and civil union laws in the 50 states plus DC. If your company does business in multiple states, you can quickly tell where you need to get started on revising your eligibility and enrollments for affected employees.

I have a feeling we’ll all be talking about the ramifications of this case for a long time – and once again, it’s HR picking up the pieces after the parade.

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