Gay Marriage Benefits Rules Get Even More Confusing

Gay marriage benefits rules get murkier with every new attempt to clarify them, as two federal agencies take different approaches to interpretation in the wake of the US v. Windsor decision.

In today’s world of headline news, often the details are left out as to the real effect of a particular court decision or new regulations issued in its wake. The US v Windsor  fallout is a perfect example. Married gay employees requesting FMLA leave or adjustments to payroll withholding, assuming they’re now entitled to full spousal benefits for everything, are often left confused and frustrated when they learn that’s not quite the case.

Two recent guidance announcements from the Department of Labor (DOL) and the Internal Revenue Service (IRS) are sure to add to this confusion.

For FMLA, It’s Location, Location, Location

The Department of Labor has just issued guidance on spousal leave based on same-sex marriages under FMLA. The announcement says the benefit entitlement is only for those where the parties reside in a state that recognizes same-sex marriages. For FMLA purposes, the employee’s residence determines whether FMLA leave is available for same-sex couples — not the location of the workplace. So if you live in Vancouver, WA and work in Portland, you’re entitled. If it’s the other way around, you’re not because Oregon doesn’t recognize gay marriage while Washington does.


Based on the news stories, many employees who are in same-sex relationships have been led to believe that any bar to benefits, recognition of status, or other hurdle has been removed. But for FMLA purposes – just like in real estate – it’s all about location, location, location.


For Tax Purposes, It’s Where You Got Hitched

The IRS has also just released new guidance on same-sex marriage that affects not just withholding allowances for spouses (and that spouse’s dependents), but the entire employee benefits arena which includes ERISA, COBRA, HIPAA, and the Affordable Care Act, among others. However, their guidance differs from the Department of Labor’s guidance.  For IRS, the qualifying fact is the place of celebration. If the same-sex couple was married in any jurisdiction that recognizes same-sex marriages, then for Federal tax purposes, the marriage will be recognized regardless of state of residency. For employers this is good news, as it does at least make federal employment taxes uniform. The marriage laws of each state will still govern state employment taxes and related benefits, regardless of where the employees reside now or where they got married.


So, never mind the employees – are YOU confused yet? Employers and particularly their HR departments may want to take steps to educate and explain these differing regulations and point out the benefits that are now available to those employees in same-sex marriages. This would also be a great time to explain that these changes affect only those who have valid marriages and does not add any benefits or access to benefits or tax status for those in domestic partnerships or civil unions.

FMLA administration doesn’t have to be that hard. See what GeniusHR can do to help.

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