Same-Sex Spouse Guidance Under the EBSA and DOL (FMLA)

Recently the Employee Benefits Security Administration (EBSA) and the US Department of Labor (DOL) released guidance on how lawfully married same-sex spouses will be treated under the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA), the result of a Supreme Court ruling in the U.S. v. Windsor case.

The Windsor decision struck down Section 3 of the “Defense of Marriage Act” (DOMA) making the definition of marriage and spouse unconstitutional. The Act defined marriage as “a legal union between one man and one woman as husband and wife”. Additionally, spouse was defined as “a person of the opposite sex who is a husband or a wife”. The implications of the stricken section have significant impact on employers and benefits under ERISA and FMLA.

EBSA Guidance

The EBSA published Technical Release Number 2013-04, “Guidance to Employee Benefit Plans on the Definition of “Marriage” and “Spouse” under ERISA”. This technical release document provides guidance to employee benefit plans, plan sponsors, plan fiduciaries, and plan participants and beneficiaries on the meaning of marriage and spouse as found in the provisions of ERISA.

The term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law. Conversely, “spouse” will be read to refer to any individuals who are lawfully married under any state law. This includes individuals married to a person of the same sex who were legally married in a state that recognizes same-sex marriages, but permanently reside in a state that does not recognize such marriage. For purposes of the guidance “state” means any state of the United States, DC, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Northern Mariana Islands, any other territory or possession of the United States, and any foreign jurisdiction having legal authority to sanction marriages. Essentially, the EBSA has determined that same-sex spouses will be recognized as married under ERISA if they are lawfully married in any US state, territory or possession, or a foreign country despite whether the marriage is recognized by the state where they reside.

DOL Guidance on Compliance with the FMLA

The DOL has updated two documents that provide guidance on the changes made to DOMA as a result of the ruling.

First, the FMLA Fact Sheet #28F has been updated. It addresses qualifying reasons for leave under the FMLA. The definition of spouse has been updated to include not only husband and wife, but also common law and same-sex marriage. Specifically, the document clarifies that an employee in a same-sex marriage who was married and lives in a state that allows same-sex marriage is entitled to take FMLA leave from work to care for the employee’s same-sex spouse with a serious health condition.

Second, a US DOL opinion letter from November 18, 1998 is under review in light of the U.S. Supreme Court’s decision. Click here to view it.

What Should Employers Do?

Employers should review current FMLA policies, procedures and forms to ensure they are compliant with EBSA and DOL guidance and if necessary seek advice from counsel for further direction.

Compliance Poster Company will post any developments on this issue here.

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