United We StandFMLA Rights:

Earlier this year, HR Legalist announced the U.S. Department of Labor’s (DOL) Final Rule (29 C.F.R. § 825.102) that changed the regulatory definition of “spouse” under the Family and Medical Leave Act (FMLA) to include all marriages that were lawfully recognized in the place where they were performed, regardless of where the couple actually lives.  The Final Rule was set to go into effect on March 27, 2015.

On March 18, 2015, the states of Texas, Arkansas, Louisiana and Nebraska (the States) filed a Complaint seeking a preliminary injunction in the United States District Court for the Northern District of Texas, requesting that the Court stay the DOL’s application of the Final Rule, pending a determination as to whether the DOL can enforce the Final Rule against states where same-sex marriages were illegal.  On March 26, 2015, the day before the Final Rule was to go into effect, United States District Judge Reed O’Connor granted an injunction ordering that the DOL stay the application of the Final Rule, pending a determination on the States’ inquiry.

On June 26, 2015, the Supreme Court of the United States (SCOTUS) issued its decision in Obergefell v. Hodges, holding that the U.S. Constitution guarantees same-sex couples the freedom to marry.  Specifically, the decision holds that the right to marry is a “fundamental right” and that all 50 states must recognize a lawfully licensed and performed same-sex marriage.  The SCOTUS’s Obergefell decision: (i) validates the DOL’s definition of “spouse”; and (ii) holds that FMLA rights must be afforded to eligible employees in a same-sex marriage, regardless of where the marriage was performed or where the employee resides.

Immediately after the issuance of the Obergefell decision, Judge O’Connor filed an Order dissolving the preliminary injunction and lifting the stay of his injunction.  Defendants (which includes the United States of America), has until July 26, 2015 to file a response to the States’ Complaint.  While we are unsure as to how the suit will proceed against the DOL, employers in Texas, Arkansas, Louisiana and Nebraska would be remiss in not providing FMLA coverage to eligible employees of same-sex marriages.

Civil Union / Domestic Partner Benefits:

Setting religious beliefs and politics aside, some employers may view the Obergefell decision as an opportunity to eliminate their existing civil union or domestic partner benefits programs for eligible employees. While employers are not generally obligated to provide health benefits to civil union or domestic partners, from a legal standpoint employers with established policies should consider maintaining them until the implications of Obergefell have been fully litigated in the courts.  Moreover, employers are reminded that – from a practical standpoint – businesses that opt to rescind this category of coverage could experience, amongst other things, issues retaining talent, as well as a variety of public relations challenges.

Tips for Employers:

Moving forward, employers – particularly those operating in states that had banned same-sex marriage – should examine their policies and confirm:

(1) Whether their employee handbook is uniformly inclusive of the rights of employees in same-sex marriages;

(2) Whether human resources forms, policies and procedures (especially those relating to FMLA leave) are inclusive of eligible employees in same-sex marriages;

(3) Whether their employee benefits plans and policies define “spouse” in a manner consistent with both the federal and state definitions; and

(4) Whether supervisors and human resources personnel should receive additional training to so as to ensure that eligible employees in same-sex marriages are not wrongfully denied FMLA leave.

And as always, we recommend that employers consult with legal counsel before implementing any policy changes.