Last week, in United States v. Windsor, the United States Supreme Court struck down a key provision of the Defense of Marriage Act (DOMA) which paves the way for more equal treatment of same-sex relationships at a federal level. At the same time, Supreme Court’s decision to dismiss the Proposition 8 case continues to allow individual states the right to decide for themselves whether to allow same-sex couples to marry. These rulings leave employers scrambling to figure out how to draft policies that best comply with the current status of the law.
The two rulings create confusion that likely only future judicial opinions will clarify, especially for companies with multi-state offices. For example, will a company based in New Jersey with employees who live and same-sex married in New York have to provide family leave, pension, and other benefits to these employees, even though New Jersey does not allow gay marriage? Or, what happens when an employee marries a same-sex partner in a state that allows for gay marriage but then relocates to work in another of the company’s locations in a state that does not recognize gay marriage? The answers are unclear, as some of the federal benefits of marriage are tied to domicile and some are granted regardless of domicile.
Employers must consult with legal counsel to ensure that they are in compliance with the current status of the law as it pertains to same-sex relationship recognition. Health insurance plans (including the handling of COBRA and open enrollment periods) and retirement plans will likely need to be adjusted, as well as the way some benefits are treated by the IRS (for example, an employee will no longer be taxed for their same-sex spouse’s insurance premiums). Family Medical Leave Act policies, as well as sick time policies, will also need to be adjusted. An employment lawyer can help a company determine which policies should be modified to ensure the employer is compliant with the law, which must be done within 25 days of the Windsor decision.