As states continue to pass legislation allowing same-sex marriage and the issue remains in the national spotlight, employers may be required to adjust some workplace policies to comply with state laws, and in other instances, some employers may choose to do so when it is not legally required.
Determine State Law Requirements
State laws concerning same-sex marriage differ and, depending on in which state an employer operates, employers' workplace obligations may vary widely. The first step to determining whether a company's policies comply with state law involves understanding the state legal requirements.
Currently, five states, Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, as well as the District of Columbia1 allow same-sex marriage. These states join seven countries in permitting same-sex marriage: the Netherlands, Belgium, Spain, Canada, South Africa, Norway and Sweden.
Laws supporting same-sex marriage have recently been defeated in Maine, New Jersey and New York, while the majority of remaining states have passed legislation expressly recognizing marriage as between a man and a woman only. The status of same-sex marriage in California is unique in that it formerly granted marriage licenses to same-sex couples but no longer does do. However, marriages performed in California between June and November 2008 are recognized and confer full state-level marriage rights to same-sex couples. While a state may not legally recognize same-sex marriages performed within its borders, some states, such as New York, have enacted legislation recognizing same-sex marriages legally performed in other states. Other states, such as New Jersey, recognize "civil unions," "domestic partnerships" or grant other rights, even though legislators in these states have not been willing to pass laws recognizing same-sex marriage. Thus, even in states that currently do not allow same-sex marriage, employers might similarly confront same-sex partnership issues.
Monitor Federal Laws
The federal government does not recognize same-sex marriages and is prohibited from doing so by The Defense of Marriage Act ("DOMA") (see 1 U.S.C. § 7 and 28 U.S.C. § 1738). The DOMA, passed in 1996, explicitly defines marriage as between one man and one woman for federal law purposes. As a result, no agency of the federal government currently recognizes same-sex marriage. And despite recent legislative and judicial trends, the great majority of states currently have laws that echo the DOMA and similarly limit marriage to heterosexual couples.
Many workplace benefits, such as retirement plans and health benefits, are regulated by the Employee Retirement Income Security Act ("ERISA"). While state recognition of same-sex marriages would have little or no impact on the benefits regulated under ERISA, employers should be aware that some workplace benefits—such as health, death, and disability insurance provided through group-insured plans—are regulated by state insurance laws.
Notwithstanding, the increasing number of same-sex marriages could build up momentum for changes to federal law. For example, currently, there is a bill pending (H.R. 2132) that would expand the reach of the Family and Medical Leave Act ("FMLA") to allow employees to take leave to care for a same-sex spouse or a domestic partner, among others, who suffers from a serious health condition. Such an extension of the FMLA would require employers to adjust their leave practices and policies, whether or not the DOMA is repealed.
Monitor State Laws
There are other state-regulated benefits that could be impacted by changes to state laws, which include some disability and workers' compensation benefits, survivors' benefits, and state family and medical leave. Additionally, same-sex marriage recognition may also impact various employer-sponsored benefits, such as employee discounts, bereavement leave, family leave and additional miscellaneous benefits. Thus, even though federal law currently does not recognize same-sex marriage and confer benefits to same-sex couples, employers may still find themselves bound by state laws that will require employers to adjust various policies accordingly.
What Should Employers Do?
For employers, what has become known as "the gay marriage debate" makes for more than interesting news. Rather, general issues surrounding employees' sexual orientation and same-sex marriage legislation, in particular, can have tangible effects within the workplace.
- First, employers should monitor the legal status of same-sex marriage in the states in which their employees work and monitor the issue on the federal level to determine what, if any, state and federal requirements exist.
- Second, employers should realize that many workplace policies that extend to or benefit "spouses" may not comply with new changes to state laws. To ensure policies and practices comply with current state laws, employers should revisit their heath insurance, workers' compensation, disability and death benefits. In addition, employers may also revisit employer-sponsored policies including bereavement leave, family and medical leave, and absence policies, among others.
- Third, once workplace policies have been adjusted to account for same-sex partnerships, employers must ensure that their policies are administered in compliance with state laws and are followed consistently—to reduce the risk of related litigation.
- Finally, employers should be well aware that there are a variety of laws that prohibit discrimination in employment on the basis of sexual orientation or marital status. And companies, particularly those with offices in multiple locations, should review their nondiscrimination policies and human resource training to reflect this.
Some companies have voluntarily adopted sexual-orientation nondiscrimination policies and have extended benefits to same-sex couples without being required to do so because, in some cases, they have decided it makes good business sense. Historically, the business community has been ahead of the general public and legislators in extending benefits, for example, to all employees without regard to sexual orientation. But, in an economic downturn, employers may be less willing today to provide nonmandatory benefits because of increased associated costs. For some employers, however, particularly those operating in multiple jurisdictions, creating uniform company benefits policies that conform with new same-sex marriage laws is an attractive option.
The laws in this emerging area vary greatly and are complex. And employers would be well-served to consult labor and employment counsel and employee-benefits counsel to ensure they are in compliance with ever-evolving state laws.
Footnote
1. The District of Columbia's law was subject to congressional approval and the District is expected to start issuing marriage licenses on March 3, 2010.
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