Peacock Tales • Summer 2015

Marriage Equality in the Employment Context

By: Barbara Graham

While people may differ about the propriety of same-sex marriages, from a religious, moral or constitutional perspective, one thing is clear: the United States Supreme Court’s recent decision in see Obergefell v. Hodges prohibiting states from banning same sex couples from marrying each other will have significant consequences for employers. As a result of this decision, there is now to be full equality between same-sex and opposite-sex spouses under federal and state law. What will full equality look like in the employment context? What measures should employers take at this juncture to ensure their compliance with the law?

Full equality means that employers will be obligated to provide the same benefits, if any, to the spouses of employees in same-sex marriages as they provide to the spouses of employees married to members of the opposite sex. Notably, this decision of the Supreme Court does not mandate that employers provide any particular type of benefit, or level of benefit, to employees’ spouses, but rather, only that same-sex spouses be treated the same as opposite-sex spouses. Of course, employers will continue to be required to provide specific benefits to employees which they were required to provide, pre-Obergefell, such as those available under the Family and Medical Leave Act, where it applies. In light of Obergefell, however, those benefits which inured to the benefit of spouses in “traditional” marriages must now be extended to same-sex spouses, or must no longer be made available to any spouses.

Our recommendation at this point is that employers should review their employee health and welfare plans, as these plans will now be required, by both Pennsylvania law and federal law, to offer coverage to same-sex spouses equivalent to the coverage offered to opposite-sex spouses. Again, although employers are not necessarily legally required to provide coverage to the spouses of their employees, they face the risk of federal and state discrimination claims if they provide coverage only to opposite-sex spouses. Of course, employers may require proof of marriage, i.e., a copy of the employee’s marriage license, as Obergefell does not provide any legal protection for unmarried same-sex partners. However, documentation of a same-sex marriage should be requested/required only if the same documentation is requested of an opposite-sex marriage.

As part of an overall review, employers are urged to prepare for requests for benefits coverage from employees who marry their same-sex partners. Employers should also review plan documents, employee manuals and handbooks, to clarify the administration of spousal rights and benefits for same-sex spouses. While the most common requests for benefit coverage are likely to be coverage under medical, dental and vision plans, employers should not overlook spousal protections provided under qualified retirement plans, COBRA rights, life insurance plans, and sick leave and bereavement leave provisions in policies, handbooks and/or agreements. In addition, employers should review their payroll procedures with respect to the taxation of such benefits, to ensure the proper federal and state tax treatment to same-sex spouses, and consider how to communicate these changes to their employees.

Despite the Supreme Court’s holding, it is anticipated that implementation of Obergfell may involve unexpected nuances. Employers are urged to contact Peacock Keller for any necessary assistance.

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