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Same-sex marriage: What the trend means for employers and HR

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in Employee Benefits Program,Employment Law,FMLA Guidelines,Human Resources,Maternity Leave Laws

No doubt you’ve seen the headlines. California same-sex couples can now officially tie the knot. It’s the latest in a national battle for sexual equality in marriage, benefits and employment rights.

What does California’s bold move mean for employers across the nation?

No federal law mandates that employees who are in state-sanctioned same-sex unions (e.g., marriage, partnerships or some other hybrid form mimicking marriage) must receive the same employee benefits that heterosexual married couples receive. But the writing is on the wall. And even employers in states that ban same-sex unions may find themselves targeted by advocates for greater benefits.

What's new

In a word, legislation. State and local governments are going where Congress has feared to go—toward recognizing some form of same-sex unions. Others have gone in the opposite direction, specifically rejecting any kind of arrangement, regardless of its name. Here’s the breakdown:

Civil unions are currently recognized in Connecticut, New Hampshire, New Jersey and Vermont. New York state recognizes same-sex marriages performed in other states. While Oregon’s constitution prohibits same-sex marriage, it provides the civil protections of marriage to same-sex couples. The District of Columbia, Hawaii, Maine and Washington provide limited recognition of civil unions.

Gay marriage, or marriage between two persons of the same sex, is recognized only in Massachusetts and now California.

Domestic partnerships are two people living together without being married, regardless of their gender or sexual orientation. California, Connecticut, the District of Columbia, Hawaii, Maine and New Jersey recognize domestic partnerships to some degree.

Eleven states ban gay marriage—Arkansas, Florida, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oregon and Utah. In all, 26 state constitutions bar same-sex marriage. Another 15 states have state laws prohibiting same-sex marriage. Many of the 2004 referendums ensure that those states will not recognize gay marriages or civil unions sanctioned by other states.

Still unclear is what impact states like California will have on state laws prohibiting recognition of marriages performed out of state.

How to comply

According to most legal experts, employers are protected from lawsuits requesting that benefits be extended to same-sex couples. That protection is due to the federal Defense of Marriage Act (DOMA), which defines marriage under federal law as only between a man and a woman.

So, for example, that would mean a Georgia employer (a state that does not allow same-sex unions) would not have to recognize an employee’s same-sex marriage performed in California.

Of course, if your company has operations in states that allow such unions, you will have to comply with the laws in those states.

What about the FMLA? Employers may also choose to voluntarily extend FMLA rights to gay spouses, civil-union or domestic partners. But there is a pitfall.

Time off taken under a voluntary arrangement may not count against an employee’s entitlement under the FMLA. So an employee who takes time off to care for a domestic partner under an employer’s voluntary program still would have 12 weeks’ FMLA leave available for his or her own illness. Employers should check their state leave laws to determine how to calculate leave usage. In many cases, employers will have to track two sets of leave usage.

What about same-sex partners who have a child? Let’s assume one of the same-sex partners works for your company but isn’t the biological parent. Must you allow him or her FMLA leave when the child joins the household or has a serious health condition?

In most cases, the answer is yes. Here’s why: FMLA regulations say that a child who is a member of the household and for whom the employee stands in loco parentis is treated as a biological child.

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