This case arose out of challenges to constitutional provisions and statutes in Michigan, Kentucky, Ohio, and Tennessee that defined marriage as a union between one man and one woman. The Supreme Court only addressed the limits of state law with respect to same-sex marriage, and did not directly decide any employment law issues. However, this decision will ultimately impact employer practices with regard to same-sex marriage.
Employers should review employee handbooks and other policies that provide benefits to married employees or address employees’ spouses. Such policies may include childcare policies, leave of absence policies, confidentiality policies, or nepotism policies. If any policies limit benefits to opposite-sex married couples or, by practice, have not been extended to same-sex married couples, employers may be required to revise their policies and practices to provide equal benefits to opposite- and same-sex married couples.
For example, FMLA-covered employers must provide FMLA leave to employees caring for their same-sex spouse. See 29 C.F.R. § 825.102. In the workers’ compensation context, where spouses are eligible to receive death benefits, same-sex spouses will now be entitled to the same benefits previously afforded only to opposite-sex spouses. See O.R.C. § 4123.59. In the same vein, employers may have nepotism or confidentiality policies that limit an employee’s actions with regard to his or her “spouse.” To the extent that those policies are tied to the legal definition of a “spouse,” they may apply more expansively to same-sex spouses. For the full range of policies and practices that may be affected by the recent Supreme Court decision, employers should contact counsel.
The Supreme Court’s decision also implicates employee benefit plans, such as retirement and pension plans; health, dental and vision plans; dependent care assistance plans; group term life plans; health and dependent care flexible spending plans; and cafeteria plans. Insured and governmental group plans will need to offer coverage to the same-sex spouses, including COBRA continuation coverages. Subject to state and local non-discrimination law and possible changes in federal law, discussed below, self-funded plans may be able to limit participation and coverage to opposite-sex spouses. However, if a plan is using any “state law” reference to marriage to define eligible spouses, those plans may need to consider covering same-sex partners. Certainly, the state tax treatment of same-sex spouses will now be on equal footing as opposite-sex spouses. However, if a plan is using any “state law” reference to marriage to define eligible spouses, those plans may need to consider covering same-sex partners. Certainly, the state tax treatment of same-sex spouses will now be on equal footing as opposite-sex spouses.
With regard to retirement and pension plans, such issues as spousal annuities and distribution consent requirements, hardship distributions, distribution rollover treatments, plan loans, qualified domestic relations orders (QDROs), required minimum distributions and withholding taxes on distributions may need to be reviewed in light of the Obergefell decision. The Supreme Court’s decision may prompt employers to revisit whether and when benefits are extended to domestic partners, since same-sex couples now have a marriage alternative that did not exist when the domestic partner concept first arose.
Although the Obergefell decision prohibits states from limiting marriage licenses to opposite-sex couples, it does not change current employment discrimination laws. Currently, neither federal law nor Ohio law explicitly bars employment discrimination on the basis of sexual orientation. That said, the EEOC has identified expanding “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions…” as one of its enforcement priorities. “U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013-2016,” U.S. EEOC (Dec. 17, 2012), available at:
https://www.eeoc.gov/eeoc/plan/sep.cfm.
The EEOC’s enforcement goals, coupled with the Supreme Court’s recent same-sex marriage decision, and a smattering of other state and municipal laws protecting sexual orientation and gender identity may lead to further changes in how employers must address LGBT-related issues in the workplace.
The full extent of Obergefell’s impact on employer practices is not yet known, but the decision will require employers to review their policies and make changes consistent with the Supreme Court’s recent ruling. Obergefell goes into effect immediately and, although there was no discussion of any retroactive effect, employers should consult counsel to identify how that decision will immediately affect them.
If you have any questions related to your compliance with the Affordable Care Act, please contact:
Kenneth Haneline, Esq.
Kastner Westman & Wilkins, LLC
330.867.9998 (t)