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How Legal Gay Marriage Changes the Employment Relationship

Today, the Supreme Court of the United States ruled that same-sex couples have the right to enter into a legal marriage.  The Court determined that, by banning such marriages, States were violating the Fourteenth Amendment of the Constitution (the Equal Protection clause) and thus, struck down those bans on same-sex marriage.

Obviously, this decision has a wide range of legal implications.  However, this article is intended to highlight how the Court’s decision will change the relationship between married, gay, employees and their employers. 

EMPLOYER SPONSORED BENEFITS:

Gay employees, like their heterosexual counterparts, will have the right (and obligation) to add their spouse as a beneficiary under their 401k plan.  A same-sex spouse must be treated the same as any other spouse under the plan.  For example, if the employee dies with a vested benefit under the plan, the spouse should receive the entire death benefit under the plan. 

If an employee with a same-sex spouse applies for a plan loan, the spouse must now consent to the loan before it can be provided.  If the plan provides for a hardship distribution, the spouse’s hardship may now be considered.

If the employer maintains a pension plan and an employee in a same-sex marriage retires, the normal form of benefits under the plan should be a qualified joint and survivor annuity for the life of the employee and the spouse.  The employee should NOT be permitted to elect any other form of benefits without the consent of the spouse.

Employer sponsored health insurance plans that provide spousal (or family) coverage must expand the scope of that coverage to include same-sex spouses.  A same-sex spouse should be permitted to elect COBRA (health care continuation) coverage under the plan in the case of a qualifying event, like termination.

FAMILY MEDICAL LEAVE ENTITLEMENTS:

Another important change will be the right of gay employees to take family medical leave to care for a same-sex spouse who is ill or injured. 

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take 12 weeks of unpaid, job-protected leave for specified family and medical reasons. In February the Department of Labor issued a Final Rule revising the regulatory definition of spouse under the Act to include a spouse in a “legal same-sex marriage”. 

THE RIGHT TO WORK IN AN ENVIRONMENT FREE FROM DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

NOT YET.  Neither the Federal Civil Rights Act (Title VII) nor Ohio’s state law prohibiting discrimination have been changed by this decision.

 Stay Tuned.

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