Proposed FMLA regulation would require benefits for same-sex couples

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A proposed federal regulation requiring employers to provide legally-married same-sex couples with benefits under the Family and Medical Leave Act regardless of their employees’ state of residence could help clear up some complications caused by conflicting federal and state laws.

“I actually think the proposed rule will make things a little bit simpler for employers in states that don’t recognize same-sex marriage,” said Robin Shea, a partner in the Winston-Salem, N.C., office of Constangy, Brooks & Smith LLP.

But the rule could lead to other problems for employers trying to navigate a confusing maze of intersecting federal and state employment laws.

“As it stands, FMLA is one of the more challenging pieces of legislation to deal with because it is in itself a complicated law, but it also intersects with state workers’ compensation law, the Americans with Disabilities Act, issues with short term and long term disability policy,” said Eric Welter, president of the Welter Law Firm in Herndon, Va. “When somebody asks for FMLA leave or you have a FMLA situation, there are always a lot of moving pieces.”

While the U.S. Supreme Court’s 2013 ruling in U.S. v. Windsor struck down §3 of the Defense of Marriage Act, which defined marriage as between opposite-sex couples for federal purposes, the ruling didn’t result in automatic federal recognition of same-sex marriages.

Many federal laws granting spousal benefits follow state-law definitions of marriage, creating different results based upon a claimant’s state of residence. Other rules are silent as to the definition of marriage altogether.

In an effort to clear up this confusion, several federal agencies have issued regulations clarifying the determination of federal spousal benefits. In its proposed regulation regarding FMLA benefits issued in late June, the U.S. Department of Labor provided that marriages of same-sex couples performed in states where such marriages are legal will be recognized. This “state of celebration” rule is a departure from the “state of residence” rule the department currently follows, which bases marriage validity on the law in the state which the couple lives.

Comments on the proposed rule will be accepted through Aug. 11, 2014, at www.regulations.gov.

Simplifying administration for employers

The rule, if finalized, would put same-sex marriage on the same legal footing as other legally-recognized unions from other states, Shea said. For example, although North Carolina does not recognize common law marriage, if a couple moved there from a state where such a marriage was recognized, North Carolina would do the same.

But right now, said Shea, “if a same-sex couple was married in Massachusetts and moved to North Carolina, they would not be considered married, which is strange. It does not work out the same for same-sex marriages because §2 of the Defense of Marriage Act says states don’t have to recognize same-sex marriages from other states. U.S. v. Windsor didn’t address that part of DOMA.”

These differing state laws create administrative headaches for employers, particularly those with employees in multiple states, some of which recognize same-sex marriage and others that don’t.

“What the FMLA rule would do is just say, ‘OK, we are going treat everybody the same, and if you get married in a state where your marriage is valid then you are validly married wherever you go to live,’” Shea said “I think it’s going to simplify administration for employers.”

But Welter said that while the rule makes things simpler once a valid same-sex marriage has been established, it doesn’t offer much help getting there.

Because the rule bases validity on the law of the state where the marriage was performed rather than the law where the employee lives, it places the onus on employers to determine if a marriage is valid.

“This will impose some complications because employers are going to have to ask that question to figure out whether or not an employee can take FMLA leave,” Welter said. “The employer would no longer be able to just look to the fact that the employee lives in Virginia, they have to figure out the state of the law where the marriage was performed. I don’t know if they thought through how an employer figures that out. … Are we going the have to ask for a copy of the marriage certificate?”

Varied effect on the states

The proposed rule will have little effect in states such as Massachusetts and Maryland, where same sex marriage is recognized. But even states where such unions are barred, such as Michigan, some employers have already taken steps that will ease compliance.

“Many of the clients that we work with are way ahead of the curve on this issue,” said Jeffrey Fraser, a member of Miller, Johnson, Snell & Cummiskey PLC in Grand Rapids, Mich. “They want to find a way to take care of their employees, so even where FMLA would not technically cover [an employee] a lot of employers have provided those rights.”

Fraser said advising clients to be proactive rather than reactive is important given the instability in the law regarding same-sex marriage. For example, Michigan’s constitutional amendment barring recognition of same-sex marriages was struck down in March. The 6th U.S. Circuit Court of Appeals stayed the ruling pending appeal, but before the stay was issued some couples got married, and U.S. Attorney General Eric Holder said those marriages would be recognized for federal purposes.

The issue could come back to the nation’s highest court as soon as next term.

While that process continues, employers will need to keep abreast of regulatory actions taken by the Department of Labor, the Internal Revenue Service, the Department of Justice and other agencies, which have so far generally provided for the recognition of same-sex marriage for the purpose of providing federal benefits.

“People’s opinion may differ from one person to another,” Fraser said, “but I think the law and society and culture as a whole is moving [toward recognition].”