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  July 01, 2015

grooms.jpgThe United States Supreme Court issued its landmark ruling Friday, June 26, 2015, in Obergefell v. Hodges, holding that the U.S. Constitution guarantees a right to same-sex marriage. Read the Court's full opinion here

two men.jpgWriting for the majority, Justice Anthony Kennedy wrote that the 14th Amendment requires a state to license a marriage between two people of the same sex, and that the U.S. Constitution does not permit states to bar same-sex couples from marriage. This ruling, coupled with the U. S. Supreme Court ruling in 2013 in United States v. Windsor, that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional, will mean broad changes in employment-related treatment of same-sex spouses.  

FMLA Leave Changes

Effective March 27, 2015, a new DOL regulation changed the definition of spouse in a same-sex marriage to one recognized by the “place of celebration”. The revision effectively extended FMLA rights to eligible workers in same-sex marriages for all marriages recognized in the state of celebration of the marriage. Shortly before the effective date of this regulation, however, Texas and three other states received an injunction delaying the effectiveness of the DOL’s regulation in those 4 states that did not recognize the validity of same-sex marriages.  

With this most recent Supreme Court ruling, employers even in states such as Texas, which previously refused to acknowledge the validity of same-sex marriages performed in states where the legality of the union was recognized, must expand FMLA coverage to same-sex spouses.    

There seems to be no doubt now that employers will have to grant FMLA leave to an employee for legitimate, covered requests for a same-sex spouse. An employee now will enjoy FMLA rights to care for his or her same-sex spouse, regardless of the state in which the employee lives.  

It remains to be determined when same-sex couples can be issued marriage licenses in Texas, but it surely will not be long, based on the pronouncement of the highest court in the United States that the 14th amendment prohibits states from refusing to issue same-sex marriage licenses.  Clearly, same-sex spouses married in Texas in the near future will be covered by FMLA provisions for leave.

Get Your Managers and Supervisors Up to Speed On The FMLA Changes Required

Discussion.jpgHR managers must be made aware of this rule change in managing FMLA leave requests. Direct managers or supervisors also should be made aware of this change so they do not advise an employee he or she is not entitled to FMLA leave for a same-sex spouse (which now should be covered) because they are not aware of this change in the law.




Changes in FMLA Policy and Forms Will Be Required 

Employers need to update their FMLA policies, forms, and notices to incorporate DOL’s new definition of “spouse”. (Coincidentally, DOL has issued new FMLA forms and notices already, which employers can access on the DOL's website.

What Documentation of Marriage Can Employer Require?

marriage license.jpgThe DOL regulations provide that, “An employee can satisfy the requirement either by providing documentation such as a marriage license or a court document or by providing a simple statement asserting that the requisite family relationship exists.” The employee gets to choose which type of proof to provide, not the employer.

Other Employment-Related Issues for Same-Sex Spouses

Employees in a same-sex marriage can claim income tax status as a married couple, and the calculation of withholding for pay purposes will be affected.  How benefits such as employer-sponsored health care insurance are provided and reported by employers and how taxes are paid on them will be impacted as well.

Qualified retirement plans must treat a same-sex spouse as a spouse for all purposes under the plan if married in a state that authorizes legal same-sex marriage, even if the marriage previously was not recognized in the state where employee resides such as Texas.

flow-chart.jpgEmployers Should Begin a Broad Review of Their Employment Practices For Same-Sex Spouse Issues

It would be wise for employers to take a look at all of their employment practices to see what adjustments need to be made for the treatment of same-sex spouses and how the recognition of the validity of same-sex marriage impacts their policies, procedures, and benefits.  Test cases will be coming down the pike soon.


To consult with an experienced employment attorney, contact Adair M. Buckner, Attorney at Law, for a free initial consultation*.

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)


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Article Topics:
Labor & Employment Law Same-Sex Rights