Jul 18, 201308:45 AMForward HR
with Diane Hamilton and Nilesh Patel
Same-sex couples’ workplace rights after DOMA’s (partial) demise
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What happens in states like Wisconsin that do not recognize same-sex marriage?
Suppose a same-sex couple marries in Minnesota, where same-sex marriages will be recognized starting Aug. 1. If the couple then comes back to Wisconsin for work, will their employers have to treat them as married or as single? Currently, Wisconsin does not recognize same-sex marriages. Section 2 of DOMA allows Wisconsin to refuse to recognize same-sex marriages from other states. Thus, a troubling question arises as to whether same-sex married employees must be treated as single or married, especially for employer obligations under federal law.
Private-sector employers can avoid the confusion to some degree by avoiding the question; just treat those employees as married for purposes of federal rights and benefits. However, such an approach may not be ideal from a cost or planning perspective. Take family medical leave as an example. An employee in a same-sex marriage may be entitled to 26 weeks of leave to care for an armed services member. While the employer can voluntarily opt to provide the benefit, perhaps the employer does not want to reinstate the employee. At that point, it would be beneficial to know whether reinstatement is obligated under FMLA, otherwise the employer risks a lawsuit and liability under that law.
One way to resolve the confusion would be to look at each relevant law and its definition of a “spouse.”
The FMLA Insights blog reports that the FMLA regulations look to a person’s state of residence to determine whether someone is a covered spouse. Thus, for the moment, a Wisconsin employer may not have to provide FMLA leave or FMLA rights to a same-sex married employee. However, for planning purposes, it would still be worth exploring whether an employee may drag the employer into an FMLA lawsuit and argue that after the Windsor case, the regulation’s residency limitation is invalid.
A quicker resolution will likely come from the Obama administration, which refused to defend DOMA’s constitutionality on appeal. A recent SHRM article reports that the president can either issue an executive order or instruct federal agencies to recognize spouses based on where the marriage occurred. That certainly seems to be a more sensible option than having federal rights appear or disappear based on where an individual is traveling or residing.
However, this solution would be limited to a federal agency’s interpretation of a law or to changes in federal regulations. Congress or the courts will need to step in to remedy exclusions when the text of a statute binds spousal rights to the state where the spouse resides.
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